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New Jersey Div. of Child Prot. & Permanency v. N.C.M.

Superior Court of New Jersey, Appellate Division

December 16, 2014

N.C.M., Defendant-Appellant, and T.E. and J.C., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF T.M., M.L.W., and M.A.J.M., minors

Argued Telephonically November 19, 2014.

Approved for Publication December 16, 2014.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-210-14.

Eric R. Foley, Designated Counsel, argued the cause for appellant ( Joseph E. Krakora, Public Defender, attorney; Mr. Foley, on the brief).

Renee Greenberg, Deputy Attorney General, argued the cause for respondent ( John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Greenberg, on the brief).

Catherine Davila, Designated Counsel, argued the cause for minors T.M., M.L.W., and M.A.J.M. ( Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Davila, on the brief).

Before Judges SABATINO, SIMONELLI, and GUADAGNO. The opinion of the court was delivered by GUADAGNO, J.A.D.


Page 1079

[438 N.J.Super. 359] GUADAGNO, J.A.D.

Defendant N.C.M. (Nora)[1] appeals from the April 1, 2014 judgment of guardianship which terminated her parental rights to her daughters T.M. (Tara) and M.L.W. (Mary), and her son, M.A.J.M. (Matt). At the time of the guardianship trial, Tara, Mary, and Matt were nine, seven, and thirteen months, respectively.

Defendant contends that the Division of Child Protection and Permanency (Division) did not prove by clear and convincing evidence the third and fourth prongs of the best interests test required for termination. N.J.S.A. 30:4C-15.1(a). Specifically, she claims that the Division's failure to provide reasonable efforts to prevent placement and effectuate reunification with her children is a direct result of an earlier failure by the Division to provide adequate services to her when she was a minor and under the Division's care and supervision.

We are satisfied that the Division proved the requisite statutory factors required to terminate defendant's parental rights by clear and convincing evidence. The circumstances of this case, however, compel us to discuss the Division's obligation to provide services, specifically mental health evaluations and treatment to minors under its care, and whether the failure to provide such services can be considered in evaluating reasonable efforts if the minor later becomes a defendant in a guardianship proceeding.

Page 1080

[438 N.J.Super. 360] I.

Nora was born in 1989. Although the record is sparse from this period, it appears that shortly after her birth, the Division took custody of Nora and placed her with B.J.M. (Beth) and her husband, who later adopted her. Nora's birth parents died during her early childhood and her adoptive father died in 2001. Nora grew up with five siblings, all of whom were adopted by Beth.

After experiencing problems completing the fourth grade, Nora was placed in special education classes and was diagnosed with a reading disorder. It appears that, at some point, Nora was classified as disabled, and Beth received benefits on her behalf.[2]

The Division was again involved with Nora in February 2002, when it received a referral that Nora, who was then twelve, had been beaten. After determining that Nora was uninjured, the Division found the allegation to be unsubstantiated. In June 2003, the Division received another referral alleging that Nora had been injured internally. This time, the Division confirmed that Nora had been injured, and Beth was responsible. The record does not indicate what, if anything, the Division did in response, although Nora continued to reside with Beth.

Later that year or in early 2004,[3] the Division removed Nora and her siblings from Beth's custody due to Beth's alcoholism. Details on Nora's initial placement are not included in the record, but in November 2004, when she was fifteen and still under the Division's care, Nora gave birth to Tara. The Division placed Nora and Tara in a high school program for teen mothers, but Nora withdrew from the program in 2005.

In December 2006, Nora gave birth to Mary. Shortly after Mary's birth, Beth made a referral to the Division alleging that Nora had moved back into her home without permission. Due to [438 N.J.Super. 361] Beth's substance abuse issues, the Division removed Tara but permitted Nora, who was then seventeen, to continue living with Beth.

In May 2007, Beth made another referral to the Division after an altercation with Nora. Beth told the caseworker that she wanted Nora out of her house. A Division report indicates that Tara had been returned to Nora and witnessed the incident but does not indicate whether the Division took any action.

In December 2010, Beth made another referral to the Division alleging that Nora " leaves the children with anyone that is available." Nora had been living at her sister's home with Tara and Mary, but was thrown out and moved back in with Beth. Beth also alleged that Nora would not get out of bed to take care of the children, which she attributed to drug and alcohol abuse.

The Division investigated the same day. Nora told the caseworker that she had nowhere to live if she could not stay with Beth. The caseworker presented Nora with the option of going to a shelter or paying for a hotel. If she did not find housing, the caseworker told Nora that the Division would remove her children.

Although Nora moved in with a relative, the Division substantiated her for neglect due to " inadequate shelter" because " her shelter problem is chronic as she has a pattern of homelessness for the past six

Page 1081

years . . . [and] has been in shelters, stayed with family members and in friends' homes."

After the December 2010 incident, the Division referred Nora for homemaker services and psychological and substance abuse evaluations. Although she attended the homemaker services, Nora refused to submit to a drug screen and did not appear for her psychological evaluation. In March 2011, Nora became homeless for the third time in two months.

The current litigation resulted from a referral received by the Division in April 2012 alleging that Nora was under the influence when she picked up her daughters from school. Nora was so impaired that she could not write her daughters' names to sign [438 N.J.Super. 362] them out of school. Division caseworkers learned that Nora had been escorted out of the building by police and the girls' maternal aunt had picked them up. Two days earlier, Nora had picked up one of her daughters from school and later returned to the school claiming the child was missing. The child was found wandering alone near a local daycare center. The Division also learned that Tara had missed thirty-nine days of school and would be held back in the first grade.

Nora admitted to smoking a mixture of marijuana and PCP known as " dip" earlier in the day. The caseworker observed that Nora remained under the influence during the interview, as she continually opened and closed her eyes, swayed in place, and alternatively laughed, yelled, or said nothing in response to the worker's questions. Nora also admitted that she had been staying in various homes. Tara and Mary confirmed that they had been staying in Jersey City, but did not know where.

As a result of the investigation, the Division executed an emergency Dodd removal[4] of Tara and Mary. The children were placed with a resource parent and family friend of Nora's, N.M. (Natalie), where they remain to date. T.E. (Tom), the biological ...

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