                                      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                                NOT FOR PUBLICATION WITHOUT THE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-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
