                                      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                                NOT FOR PUBLICATION WITHOUT THE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-5668-17T1

C.T.,

          Plaintiff-Appellant,

v.

N.C.P.,

     Defendant-Respondent.
______________________________

                    Submitted October 2, 2019 – Decided December 30, 2019

                    Before Judges Rothstadt and Mitterhoff.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Burlington County,
                    Docket No. FD-03-1010-14.

                    Mark J. Molz, attorney for appellant.

                    Respondent N.C.P. has not filed a brief.

PER CURIAM

          This appeal presents a custody dispute between a paternal grandmother,

plaintiff C.T. (Catherine), and her grandchild's mother, defendant N.C.P.
(Nora).1 Plaintiff appeals from a June 26, 2018 Family Part order granting

custody of her then six-year-old granddaughter, R.P. (Rose) to defendant. The

Family Part judge entered the order after finding plaintiff failed to present

evidence sufficient to prove defendant was unfit to care for Rose under Watkins

v. Nelson, 163 N.J. 235 (2000).

      On appeal, plaintiff argues the judge erred in awarding custody of Rose to

defendant because the evidence demonstrated that defendant used drugs and

provided Rose with inadequate housing. We disagree and affirm.

      According to plaintiff, Rose had been in her care since the child's birth.

Plaintiff lives with at least one other individual, but as of 2018, the Division of

Child Protection and Permanency (the Division) maintained there were no

concerns with the condition of plaintiff's home.

      Defendant lives in a studio apartment with her fiancé.           Rose's bed

allegedly has a tent over the top of it. According to Division caseworkers, the

utilities work, the premises are clean, and there is food available. Further, the

Division has stated defendant's home is safe, appropriate, and has passed all

Division requirements.


1
  To protect privacy interests, we use initials and pseudonyms for the parties.
R. 1:38-3(d)(12).


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      In February 2014, plaintiff was awarded custody of Rose after she and the

Division filed custody actions.2 Rose remained in plaintiff's custody until 2018,

at which point the Division received referrals about Rose not being properly

cared for by plaintiff. Specifically, the Division received a child protective

services referral on December 9, 2017, about someone bringing drugs into

plaintiff's home and a second referral about a possible overdose. Division

caseworkers arrived at plaintiff's home and found Rose was being cared for by

plaintiff's roommate, rather than plaintiff.     The caseworkers then learned

plaintiff had left her sister-in-law and roommate in charge of Rose's care after

she was hospitalized for a broken leg.

      On April 17, 2018, the Division received another referral about an adult

who was yelling at a child on the street. Although the reporter stated plaintiff's

roommate was yelling at Rose because of her absences from school, plaintiff

maintained her sister-in-law was the one yelling at Rose. That same day,

Division caseworkers spoke with Rose, who stated both plaintiff's roommate and

sister-in-law were yelling at her because she did not want to go to school.

Although Rose was crying while she was being yelled at, she told the



2
  According to plaintiff, defendant lost custody of Rose in 2014 after she failed
to attend a drug test and a psychological evaluation.
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                                         3
caseworkers she was not scared because plaintiff's roommate "yells at her all the

time." After Division caseworkers spoke with plaintiff's sister-in-law, they told

her Rose was going to be removed from plaintiff's home. Plaintiff's sister -in-

law responded by stating she thought that "was best for [Rose]." Later that day,

Division caseworkers contacted defendant, who agreed to take Rose into her

home. Upon arrival, Rose "ran to give [defendant] a hug" and stated she felt

"safe and happy to be with [defendant]."

      The next day, the Division filed a verified complaint against the parties to

this action and Rose's father, alleging abuse and neglect under Title 9, N.J.S.A.

9:6-8.21, based on plaintiff's inability to care for Rose. The following day, a

judge entered an order granting defendant "emergency custody" of Rose.

      Defendant filed a motion for custody that the Family Part judge

considered on June 26, 2018. The judge entered the order granting custody to

defendant and granting plaintiff "liberal visitation" at defendant's residence and

placed his reasons on the record that same day.

      Before granting custody to defendant, the judge found plaintiff would be

a "good caretaker" for Rose, but that the parent's right to custody was

"paramount" under Watkins. Although he found defendant's current living

situation was not ideal, he ultimately awarded her custody stating, "[defendant]


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                                        4
has demonstrated that she is capable" of raising Rose at this point and that he

would support both the Division's and the Law Guardian's custody

recommendations. This appeal followed.

         In an amplification filed under Rule 2:5-1(b), the judge summarized his

decision and stated the only evidence plaintiff presented to show defendant's

unfitness was that (1) Rose slept in a room together with defendant and her

fiancé; (2) Rose slept with a tent over her head; and (3) defendant had recently

smoked marijuana. According to the judge, this evidence was insufficient to

overcome the presumption of fitness in favor of the parent under Watkins. We

agree.

         We review a custody award under an abuse of discretion standard, giving

deference to the court's decision provided that it is supported by "adequate,

substantial, credible evidence" in the record. Cesare v. Cesare, 154 N.J. 394,

411-12 (1998). "[T]he decision concerning the type of custody arrangement [is

left] to the sound discretion of the trial court[.]" Nufrio v. Nufrio, 341 N.J.

Super. 548, 555 (App. Div. 2001) (second and third alteration in original)

(quoting Pascale v. Pascale, 140 N.J. 583, 611 (1995)). Therefore, "the opinion

of the trial judge in child custody matters is given great weight on appeal." Terry

v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994). Nevertheless, "we must


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                                         5
evaluate that opinion by considering the statutory declared public policy and

criteria which a trial court must consider." Ibid. In doing so, we owe no

deference to "the trial judge's legal conclusions, and the application of those

conclusions to the facts." Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div.

2013).

      We begin by noting that a third party may file an action for custody of any

child under N.J.S.A. 9:2-9, which provides in pertinent part:

            When the parents of any minor child . . . are grossly
            immoral or unfit . . . it shall be lawful for any person
            interested in the welfare of such child to institute an
            action in the Superior Court, Chancery Division,
            Family Part, in the county where such minor child is
            residing, for the purpose of having the child brought
            before the court, and for the further relief provided by
            this chapter. The court may proceed in the action in a
            summary manner or otherwise.

N.J.S.A. 9:2-10 permits a court to award custody of a child to the party bringing

the action under N.J.S.A. 9:2-9. N.J.S.A. 9:2-10. However, the public policy

of this State is that a presumption exists in favor of a parent. Watkins, 163 N.J.

at 244.

      In a custody dispute between a third party and a parent under Watkins, a

court must engage in a two-step analysis. First, it must determine whether the

third party overcame the presumption in the parent's favor by presenting clear


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                                        6
and convincing evidence of parental unfitness, abandonment, gross misconduct,

or the existence of exceptional circumstances affecting the welfare of the child.

Id. at 253-55.

      The exceptional circumstances element is grounded in the court's power

of parens patriae to protect minor children from serious physical or

psychological harm. Id. at 246-47. This test "always requires proof of serious

physical or psychological harm or a substantial likelihood of such harm" and is

considered on a case-by-case basis. Id. at 248. Proof that a third party has

become a child's psychological parent by assuming the role of his or her legal

parent who has been unable or unwilling to undertake the obligations of

parenthood will suffice to establish exceptional circumstances. Id. at 254.3

      Second, if the first prong is met, the court then considers the best interests

of the child test articulated in N.J.S.A. 9:2-4(c).      Id. at 254.    "[T]he best

interest[s] of the child cannot validly ground an award of custody to a third party

over the objection of a fit parent without an initial court finding that the standard




3
  Although "the scope of 'exceptional circumstances' must await case-by-case
development," no other sets of facts, other than those involving psychological
parentage, have been provided thus far. Id. at 248; see also Fall & Romanowski,
Child Custody, Protection & Support § 21:3-3(b) (2019).
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                                         7
for termination of the rights of a non-consenting parent or the 'exceptional

circumstances' prong has been satisfied." Id. at 255.

      Although there are no reported cases providing a standard for parental

fitness as it relates to N.J.S.A. 9:2-9, "[t]o a large extent, the grounds for a total

denial of custody mirror those for the termination of parental rights" under Title

30, N.J.S.A. 30:4C-15.1(a). Fall & Romanowski, Child Custody, Protection &

Support § 21:3-3(a) (2019); see also § 22:3-1(a).

      Under Title 30's parental termination standard, parental unfitness first

requires harm that "threatens the child's health and will likely have continuing

deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. 337,

352 (1999); see also N.J.S.A. 30:4C-15.1(a)(1). Recognizing that the second

prong of Title 30's parental termination standard "relates to parental unfitness,"

K.H.O., 161 N.J. at 352, that unfitness may be established by showing the parent

is "'unwilling or unable to eliminate the harm'" endangering the child's health

and development.      Ibid. (quoting N.J.S.A. 30:4C-15.1(a)(2)).        Moreover, a

parent who has failed to supply a "'safe and stable home for the child'" may be

unfit. Ibid.

      A parent's irresponsibility, "such as the parent's continued or recurrent

drug abuse, the inability to provide a . . . protective home, the withholding of


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                                          8
parental attention and care, and the diversion of family resources in order to

support a drug habit, with the resultant neglect and lack of nurture for the

child[]" may also serve to establish unfitness. Id. at 353. However, use of drugs,

alone, is insufficient to prove parental unfitness. See N.J. Dep't of Children &

Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013). Proof

that a parent has committed to maintaining a stable lifestyle and drug

rehabilitation will suffice to meet the standard for parental fitness. See K.H.O.,

161 N.J. at 352-53.

      Applying these guiding principles, we conclude the trial judge correctly

determined plaintiff failed to offer sufficient evidence to overcome defendant's

presumed fitness, and therefore cannot meet the first prong of the Watkins test.

Plaintiff's proposed evidence of defendant's unfitness—that defendant smokes

marijuana, that defendant has Rose sleep with a tent over her bed, and that

defendant has Rose sleep in the same room as her and her fiancé, does not

warrant a finding of unfitness. Cf. id. at 353 (addressing a mother's recurrent,

chronic heroin use and holding her parentally unfit since she was "consistently

unable to take any responsibility for [the child's] parental care").

      As the Family Part judge noted, that although defendant's living situation

is not ideal, the Division has stressed that the home is safe and meets all Division


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                                         9
requirements.     Under these circumstances, we fail to see how defendant's

smoking marijuana, coupled with her less-than-ideal living situation, suffices as

clear and convincing evidence that defendant is unfit to care for Rose.

Defendant has maintained that she is in the process of trying to find another

place to live, with more room for everyone. We will not condemn defendant's

conduct when, by all accounts, although defendant is struggling financially, she

is in the midst of trying to improve her situation and provide for her daughter.

      The Family Part judge correctly determined that plaintiff failed to meet

the first prong of the Watkins test. Therefore, there was no reason for the trial

judge to consider whether defendant's custody of Rose was in Rose's best

interest based upon the limited evidence that plaintiff produced in support of her

complaint.

      Affirmed.




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