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New Jersey Division of Child Protection and Permanency v. M.R.G.-M.

Superior Court of New Jersey, Appellate Division

October 8, 2013

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
v.
M.R.G.-M., Defendant-Appellant IN THE MATTER OF THE GUARDIANSHIP OF M.P.R. and M.R.G., minors

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 16, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-122-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Frank, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors M.P.R. And M.R.G., (Melissa R. Vance, Assistant Deputy Attorney General, on the brief).

Before Judges Yannotti, Ashrafi and St. John.

PER CURIAM

M.R.G.-M. appeals from an order entered by the Family Part on September 10, 2012, terminating her parental rights to two of her children, M.P.R. and M.R.G.[1] We affirm.

We briefly summarize the salient facts. On November 6, 2009, the Camden City Police Department informed the Division of Child Protection and Permanency (Division) that M.R.G.-M. left Michael, Jeremy and Mary at home alone, while she went to a court proceeding with Diane and Margery.

The three children were home alone for about an hour before a bus arrived to take Michael and Jeffrey to an after-school program. The boys informed the bus driver that Mary was alone in the house. The bus driver called the police, who contacted the Division. The police arrived at the home. They called M.R.G.-M., who reported that she was "minutes away." M.R.G.-M. explained that there had been a "miscommunication" with the babysitter. The Division determined that the allegation that M.R.G.-M. neglected the children had been substantiated. M.R.G.-M. agreed to a back-up child care plan, to address situations when her regular babysitter was not available.

On August 12, 2010, the Camden police informed the Division that M.R.G.-M.'s five children were found in the home unsupervised at 1:00 a.m. At that time, Margery was four years old, and Mary was two years old. The oldest child was twelve years old. A police officer contacted M.R.G.-M. at 1:05 a.m., and she told the officer that she was on her way home. The Division's caseworkers arrived at 3:00 a.m.

Jeremy told one of the caseworkers that M.R.G.-M. left at 10:00 p.m. She called at 1:00 a.m. and said she was walking home. M.R.G.-M. did not return, and the caseworker removed the children on an emergent basis. The Division filed a complaint in the Family Part, alleging that M.R.G.-M. had abused or neglected her children.

On August 13, 2010, the Family Part judge entered an order awarding the Division care and custody of M.R.G.-M.'s five children, and required that she show cause why the children should not remain in the Division's care and custody. M.R.G.-M. did not appear on the return date of the order to show cause. The judge entered an order which provided that the children would remain in the Division's care and custody.

On December 3, 2010, following a fact-finding hearing, the judge found, by clear and convincing evidence, that M.R.G.-M. abused or neglected the children by leaving them home without supervision. The judge entered an order placing Mary and Margery with N.M., their maternal uncle and his fiancee. In the months that followed, the Division referred M.R.G.-M. for various services, including a psychological evaluation, which took place in June 2011. Among other things, M.R.G.-M. was diagnosed with poly-substance dependence and schizoaffective disorder.

On August 22, 2011, the trial court conducted a permanency hearing. The court determined that the termination of M.R.G.-M.'s parental rights to Mary and Margery followed by their adoption was appropriate. In its order, the court noted that M.R.G.-M. had not cooperated with the services the Division had provided to her.

The Division filed its guardianship complaint on October 4, 2011. In July 2012, Margery's father made a voluntary surrender of his parental rights to the child's foster parents. Mary's father could not be found and he did not participate in the trial court proceedings.

Trial in the matter was scheduled for September 10, 2012. Before the trial began, M.R.G.-M. sought a six-month adjournment so that she could develop a relationship with Mary and Margery. The trial judge denied the application, explaining that M.R.G.-M.'s "past performance [does not] inspire any confidence that anything would be different in the next six months, " and "critical times in the lives of these children" have already passed.

At the trial, the Division presented testimony from Dr. Vivian Rodriguez Silverstein, caseworkers Brenda Smith and Aneesah Bush, and N.M., the children's foster parent. M.R.G.-M. testified on her own behalf. On September 10, 2012, the trial judge placed his decision on the record, in which he concluded that the Division had established by clear and convincing evidence all four of the prongs of the test in N.J.S.A. 30:4C-15.1(a) for termination of parental rights.

After reviewing the evidence, the judge found that the children's safety, health and development had been endangered by their relationship with M.R.G.-M., and the children would be endangered by a continuation of the parental relationship. The judge pointed out the children had been doing "more than well" with their foster parents.

The judge additionally found, based on Dr. Silverstein's testimony, that M.R.G.-M. would be unable to eliminate the harm to the children. The judge stated that M.R.G.-M. "is unable to provide [the children with] a safe and stable home." The judge found that the children would suffer serious and enduring emotional and psychological harm if they are removed from their foster parents. The judge determined that "a delay of permanent placement would add to the harm."

The judge also determined that the Division made reasonable efforts to assist M.R.G.-M. address the circumstances that led to the removal of the children from her care, but she had been initially unwilling to participate in services. The judge stated that M.R.G.-M.'s subsequent participation was "too little" and "too late."

The judge further found that termination of M.R.G.-M.'s parental rights would not do more harm the good. The judge said that failure to terminate M.R.G.-M.'s parental rights "would result in more harm to these children than any possible good, " and M.R.G.-M. would not be able to mitigate the harm that may result from termination of the children's relationships with their foster parents.

The judge memorialized his decision in an order entered on September 10, 2012. M.R.G.-M. appeals and argues that the judge erred by finding that the Division presented clear and convincing evidence establishing prongs one, two and four of the statutory test. She also argues that the judge erred by denying her application for a six-month adjournment of the trial. We are convinced that these arguments are without merit.

The Division is authorized to initiate a petition to terminate parental rights in the "best interest of the child" and the petition may be granted if the Division establishes, by clear and convincing evidence, the four criteria in N.J.S.A. 30:4C-15.1(a). N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986)). The statutory criteria "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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

The scope of our review in an appeal from an order terminating parental rights is strictly limited. G.L., supra, 191 N.J. at 605 (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We must defer to the trial judge's findings if they are "supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1993)). In addition, we must accord special deference to the findings of the Family Part because of its expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).

M.R.G.-M. argues the Division failed to establish that the first prong of the best interests test, which requires the Division to show that the children's safety, health and development have been or will continue to be harmed by the parental relationship. N.J.S.A. 30:4C-15.1(a)(1). We disagree.

Here, the evidence clearly and convincingly established that the children were harmed by their relationships with M.R.G.-M. As we stated previously, on November 6, 2009, M.R.G.-M. left Mary and two of her other children at home alone. On August 12, 2010, M.R.G.-M. left Mary, Margery and her other three children at home alone.

The latter incident led to the children's removal from M.R.G.-M.'s care. M.R.G.-M. had minimal contact with Mary and Margery after they were placed with N.M. and his fiancee. She did not visit the children and only spoke to them by phone within the few months prior to the trial.

Furthermore, Dr. Silverstein testified that M.R.G.-M. has mental health impairments that have adversely affected her ability to parent the children and provide them with a safe and stable home. In addition, M.R.G.-M. initially failed to avail herself of the services offered by the Division, which impeded any effort at reunification and resulted in the children's continued placement in foster care.

M.R.G.-M. argues that the Division only established a "brief lapse in child care." She claims this was an isolated incident that should have been given limited weight in the judge's decision. However, the August 12, 2010 incident was not brief. The children were left alone without supervision for several hours. Moreover, this was not an isolated incident. It was the second time M.R.G.-M. left her young children alone without supervision.

M.R.G.-M. additionally argues that a psychological diagnosis and symptoms are not sufficient to establish the first prong because there was no evidence the children suffered psychological abuse as a result of her "mental impairment." However, as we have explained, the Division established that the children have been harmed by their relationship with M.R.G.-M. The Division was not required to show that the children suffered psychological abuse to establish prong one.

Next, M.R.G.-M. argues that the judge erred by finding that the Division established prong two of N.J.S.A. 30:4C-15.1(a), which requires the Division to show that "[t]he 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."

M.R.G.-M. contends that the Division did not establish any "direct harm" under prong one. She contends that the Division could not show that she is "unwilling or unable to eliminate" such harm. M.R.G.-M. also contends that she is capable of providing the children with a safe and stable home. She asserts that she completed recommended services, has a basic understanding of how to care for a child, and had established appropriate housing by the time of the trial. These contentions are entirely without merit.

As we stated previously, the evidence established that the children were harmed by their relationships with M.R.G.-M. Moreover, the evidence showed that M.R.G.-M. is unwilling or unable to eliminate that harm. As the judge noted, M.R.G.-M. had initially refused services and, while she participated in certain programs in the months preceding the trial, there was no indication that she had learned anything from her participation. Moreover, Dr. Silverstein testified that M.R.G.-M. suffers from mental health impairments, including schizoaffective disorder, which adversely affect her ability to parent the children. She has difficulty managing her day-to-day affairs. She is not independent. She cannot sustain her own well-being, as shown by her non-compliance with treatment. Her prognosis for change is poor. The evidence clearly and convincingly established the second prong of the statutory test.

M.R.G.-M. also argues that the judge erred by finding that the Division established the fourth prong of the best interests test. That prong requires the Division to establish that termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). M.R.G.-M. argues that her parental rights cannot be terminated because the Division has not shown that she harmed the children. Again, we disagree.

Dr. Silverstein testified that the children are securely attached to N.M. and his fiancee, and they are the children's psychological parents. Dr. Silverstein testified that Margery has an insecure attachment to M.R.G.-M., while Mary has no attachment to her mother whatsoever.

Dr. Silverstein also testified that the children would suffer serious and enduring harm if removed from the care of their foster parents, and M.R.G.-M. does not have the ability to mitigate that harm. The doctor stated that M.R.G.-M.'s prognosis for change is poor, and the children would be at considerable risk of harm if they were returned to M.R.G.-M.'s care. The record thus supports the judge's finding that the Division established prong four with clear and convincing evidence.

In addition, M.R.G.-M. argues that the trial judge erred by refusing to adjourn the trial six months so that she could establish a relationship with Mary and Margery. Again, we disagree. M.R.G.-M. had an opportunity to establish a relationship with her daughters in the two years after they were removed from her care. M.R.G.-M. could have visited the children but did not do so. She only contacted the children by phone in the months preceding the trial.

Furthermore, as the judge stated in denying the motion, based on M.R.G.-M.'s past performance, there was little likelihood that the situation would be different in six months. The judge said the trial should proceed as scheduled because "critical times" in the children's lives had already passed. The record supports the judge's determination. We therefore conclude that the judge did not abuse his discretion by refusing to grant the adjournment.

Affirmed.


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