Opinion
DOCKET NO. A-3756-14T3
02-25-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.D.B., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.W.B., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura A. Dwyer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.W.B. (Phyllis Warren, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso, and O'Connor. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FG-04-115-15. Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Laura A. Dwyer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.W.B. (Phyllis Warren, Designated Counsel, on the brief). PER CURIAM
Defendant T.D.B. appeals from the April 8, 2015, termination of her parental rights to her now fifteen-year-old son, J.W.B. ("Jason"). She argues that the Division of Child Protection and Permanency ("the Division") did not prove the four prongs of the statutory "best interests of the child" test under N.J.S.A. 30:4C-15.1(a), and that the trial judge erred in admitting certain evidence at trial. For the reasons that follow, we affirm the trial court's determinations as to the first three statutory prongs but remand for reconsideration of prong four in light of the post-judgment change in Jason's foster placement that has been noted to us in the appellate briefs.
We have fictionalized the name of defendant's children, including J.W.B.
I.
Defendant was first referred to the Division nearly ten years ago in March 2006, when Jason was five years old, and his sister N.B. ("Nadia") was seven. The Division substantiated an allegation of neglect because defendant had allowed the children to walk to and from school without any supervision. Less than two months later, in May 2006, the Division received another referral, and substantiated an allegation that defendant had physically abused Jason after he lit a blanket on fire.
Nadia resides with a maternal aunt, and is not the subject of this litigation.
Eighteen months later, in November 2007, the Division removed both children from defendant's care after she left them home alone. Jason, who was then seven years old, called 9-1-1 because he was frightened. Thereafter, defendant consented to a paternal aunt taking custody of Jason. He lived with his aunt for over three years, during which time his father died.
The Division remained involved with defendant during much of the time Jason was in the custody of his paternal aunt, while the Division had custody of Nadia.
The Division removed Jason from his aunt's custody in June 2011, after it substantiated an allegation of physical abuse. By the time of the guardianship trial in 2015, Jason had moved through four therapeutic foster homes in four years. During its involvement, the Division has investigated and ruled out numerous family members and friends as potential placements for Jason.
The record shows that Jason has suffered a great deal in his young life. He has received services to address his educational, emotional, and behavioral issues. In the past he rejected the possibility of adoption. However, in speaking with his adoption caseworker on several occasions before the guardianship trial, Jason expressed that he loved his mother, and he wanted to live with her and maintain contact with his family. At the same time, he understood that his mother remained unable to parent him, so he wanted to be adopted by the foster parent who was caring for him.
With respect to defendant's ability to parent her son, the record reflects that she suffers from bipolar disorder. However, she does not engage in therapy or take the prescribed anticonvulsant medications, without which there is the potential "for acting out, losing one's temper, losing control, becoming highly irritable, hurting people emotionally, hurting them in all sorts of other ways[.]" She did not complete high school or obtain a GED; she has a history of drug use; she is chronically unemployed; and she has no independent housing.
Over its many years of involvement with the family, the Division has offered numerous services to defendant to attempt to remediate the issues that led to the removal of her children. Those services have included referrals for rental assistance and a shelter placement, in-home support services, psychiatric and psychological evaluations and treatment, parenting classes, and substance abuse evaluations and treatment, as defendant at times tested positive for marijuana and PCP.
Defendant was mostly non-compliant with the services the Division offered. She refused medication for her mental illness, was frequently hostile and threatening toward Division workers, and was dismissed from numerous drug treatment programs and parenting classes. Although she eventually completed one set of parenting classes, and one drug treatment program, she did not comply with the recommended follow-up treatment, including additional parenting classes and a "MICA" program.
MICA consists of substance abuse counseling and mental health treatment.
Defendant was provided with supervised, and at times unsupervised, visitation with Jason. However, as the Division's caseworker testified, defendant "went for sometimes weeks, sometimes a month, without any contact, not only with the Division, but with her son," either by phone or in person. She participated in visitations only sporadically. She would attend some visits but miss others, sometimes going without seeing Jason for months at a time. Moreover, defendant did not always behave well during the visits, as she did not devote her attention to her son, and she discussed inappropriate matters with him.
The Division's unrebutted psychological expert, Dr. Linda Jeffrey, performed a psychological evaluation of defendant, as well as bonding evaluations between defendant and Jason and between the foster parent and Jason. Dr. Jeffrey testified that defendant was unable to safely parent her son due to her untreated and chronic mental health issues, which included bipolar disorder and a personality disorder with narcissistic, paranoid, and borderline features, her substance abuse, and her failure to function as an independent adult in terms of education, employment, and housing.
Defendant had to be physically removed from the Division's offices after her bonding evaluation, because she became hostile upon encountering Jason's foster parent.
Dr. Jeffrey found that Jason loved his mother but did not have a secure attachment to her. He did not relate to her as "as a source of trust, safety or security," and though the termination of defendant's parental rights would cause Jason to suffer a loss, in particular a loss of the hope that his mother would "miraculously one day get it together" and be able to parent him, it would not cause him severe and enduring harm. In Dr. Jeffrey's opinion, a termination of defendant's parental rights would benefit Jason to the extent it would give him "the freedom to move forward with his life."
In this regard, Dr. Jeffrey found that, even though Jason was only fourteen years of age and had his own history of behavioral problems, he displayed greater emotional control than his mother. However, exposure to defendant's dysfunctional role modeling was emotionally and developmentally harmful to Jason; he was at risk of taking on the parental role and not focusing on his own developmental needs. What he needed was "to become himself, have responsibility for himself and not for his parent." In Dr. Jeffrey's opinion, Jason had a secure attachment to his foster father, who had at that time expressed a desire to adopt him, and the foster father was able to parent Jason and ameliorate any harm Jason would suffer from the termination of his mother's parental rights.
II.
The applicable law is well established. "Parents have a constitutional right to raise their children. . . . But that right is . . . tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012).
Under N.J.S.A. 30:4C-15.1(a), the Division must seek the termination of parental rights when it is in the best interests of the child, as follows:
The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" . . . 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;The Division must prove all four, interrelated prongs of the statutory standard by clear and convincing evidence. F.M., supra, 211 N.J. at 447-48.
(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.
On appeal from a termination of parental rights, we recognize the family court's "specialized knowledge and experience in matters involving parental relationships and the best interests of children." Id. at 427. "We defer to the family court's findings unless they are so wide of the mark that our intervention is required to avert an injustice. So long as the record contains substantial and credible evidence to support the family court's decision, we may not second-guess its judgment." Ibid.; accord N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007).
With respect to the first and second prongs of the statutory test, the trial court reasonably concluded from the evidence that defendant had abused and neglected Jason while he was in her care. Defendant remained unable to provide a safe and stable home for him at present or in the near future, due to her untreated mental illness, her substance abuse, and her failure to live as an independent adult with employment and independent housing. The court also found that defendant's inconsistent visitation, and her failure to attend the guardianship trial, was indicative of her unreliability, and returning Jason to her care would place him at risk of serious emotional harm.
Defendant argues that the Division failed to prove the first prong of the statutory test because there was no fact finding hearing held after Jason's removal in 2007. She further argues that the Division failed to prove the second prong of the statutory test because she complied with some services offered, notwithstanding that they were allegedly unsuited to her needs.
We disagree with these arguments concerning the first two prongs. The Division was not required to prevail in an abuse or neglect action before initiating an action for the termination of parental rights, nor is defendant permitted to make such an argument at this late juncture in the litigation. F.M., supra, 211 N.J. at 443-44; N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 259-61 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010).
On the evidentiary record presented at the guardianship trial, both the first and second prongs of the statutory test were proven by clear and convincing evidence, for the reasons cogently explained by the trial judge. The court did not err in finding that defendant neglected Jason when she permitted him to walk home with other young children and left him and other young children alone for an extended period of time. Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 170, 181-85 (2015) (elaborating upon the statutory standards of child neglect); Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 309 (2011) (same). The risk to the children's safety, and the emotional harm to Jason, was patently evident from the record. Indeed, Jason reached out to the police for assistance when he became scared in his mother's absence. Moreover, since Jason has been out of his mother's care, her "withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Unfortunately, defendant has been unable or unwilling "to comport her behavior to focus on her son's needs." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 482 (App. Div. 2012). Although her mental illness alone does not disqualify her from raising her son, her refusal to treat her mental illness poses a threat to his well-being. F.M., supra, 211 N.J. at 450-51. Through the date of trial, defendant continued to harm him by remaining an inconsistent presence in his life and unable to provide a safe and stable home for him. In re Guardianship of K.H.O., 161 N.J. 337, 352-53 (1999); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (noting that "[s]erious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights").
With respect to the third prong of the statutory test, the trial court reasonably found from the evidence that defendant did not avail herself of the myriad of services offered by the Division, and the Division had duly considered alternatives to the termination of parental rights, including placements with relatives.
Defendant contends the third prong was not proven because the services the Division provided allegedly were not tailored to meet her needs. In particular, she maintains that she should have been provided with cognitive testing to determine if she had a learning disability. We disagree with defendant's argument, which is improperly raised for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). The services offered to defendant were those recommended by the Division's professional consultants, and were intended to address her specific needs. However, she did not regularly participate in visitation with her son; refused treatment for her mental illness; and failed to complete the recommended parenting classes and substance abuse treatment, including the MICA program, which is specifically tailored for people with her conditions. Thus, the Division satisfied the third prong of the statutory test. N.J.S.A. 30:4C-15.1(c) (defining reasonable efforts); D.M.H., supra, 161 N.J. at 390.
Despite defendant's failure to raise this argument in the trial court, we choose to address it for sake of completeness. --------
"The diligence of [the Division]'s efforts on behalf of a parent is not measured by their success." D.M.H., supra, 161 N.J. at 393. Moreover, defendant's cognitive limitations, to the extent they exist and constitute a learning disability, do not provide a defense to the termination of her parental rights. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
With respect to the fourth prong, the court credited Dr. Jeffrey's finding that Jason had only an insecure relationship with his mother. By contrast, at the time of trial, Jason was living "in a loving, stable, nurturing [foster] home," in which he had "flourished." He had a secure attachment at that time to his foster father, who has a master's degree in counseling and was "encouraging, but firm and realistic and loving." The foster father wanted to adopt Jason, and other members of the foster family, children and grandparents, supported that plan.
The court recognized that the termination of defendant's parental rights would cause Jason some pain and that he would undergo "a grieving process." Nevertheless, the court concluded that termination would not cause Jason any severe or enduring harm. In this regard, the court adopted Dr. Jeffrey's opinion that the foster father had the ability to ameliorate any harm arising from the termination of parental rights.
The court reasonably accepted Dr. Jeffrey's opinion that Jason was "more at risk of harm if there's not [a] termination of parental rights because of [his] multiple placements, the disruptions, it would be hard for [him] to settle down and trust," as he had done in his most recent foster placement. The court believed Jason required permanency now, "to be taken out of limbo[,]" so he could be adopted and live as part of a permanent family.
Defendant argues that the Division did not establish the fourth prong by clear and convincing evidence, claiming Dr. Jeffrey's testimony was not credible and reflected a bias toward adoption, the Division failed to provide her with tailored services, and the court improperly considered the material advantages the foster father could provide that she could not.
We find no merit to these arguments. It is not our place to second-guess the trial judge's credibility findings. R.G., supra, 217 N.J. at 552. We have already rejected defendant's argument regarding the quality of the services offered to her, and we see nothing in the record indicating that the court considered the material wealth of defendant or the foster parent. We agree with the court that, based on the record as it existed at trial, the Division proved by clear and convincing evidence that the termination of defendant's parental rights would not do more harm than good. See, e.g., F.M., supra, 211 N.J. at 453-54; D.M.H., supra, 161 N.J. at 384.
Thus, we would have affirmed the judgment as to prong four, if our review at this point were solely restricted to the record below. We do not end our analysis there, however, because we have been advised that since this appeal was filed Jason has been moved to a different foster home. Defendant argues in her reply brief that the judgment should be reversed based upon this post-judgment change of circumstance, or alternatively that the case be remanded for a new assessment. The Division and the Law Guardian continue to maintain that the termination of parental rights should be affirmed, despite Jason's recent change in foster placement.
The law anticipates that when considering prong four of the best interests of the child test, a trial court will be presented with expert testimony addressing the child's relative bonds with the biological and foster parents. R.G., supra, 217 N.J. at 559; K.H.O., supra, 161 N.J. at 355; In re Guardianship of J.C., 129 N.J. 1, 18-19 (1992). At the same time, the law recognizes that the "termination of parental rights does not automatically lead to adoption or other comparable permanent arrangements." K.H.O., supra, 161 N.J. at 359.
"A court should hesitate to terminate parental rights in the absence of a permanent plan that will satisfy the child's needs." N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996). "[T]erminating parental rights without any compensating benefit, such as adoption, may do great harm to a child[,]" particularly if the child may be cycled through multiple foster homes after termination, and the child's only enduring emotional bond is with the biological parent. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 109-11 (2008). Nevertheless, "there will be circumstances when the termination of parental rights must precede the permanency plan." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611 (1986).
Bearing these principles in mind, the recent change in Jason's placement gives us pause in light of the trial court's understandable substantial reliance upon the relationship between Jason and his former foster parent when finding that prong four of the statutory test had been established. The change in Jason's placement could be significant, and warrants further development of the record in a forum where there can be a full assessment of the current situation. See, e.g., N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 246-50 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011). Among other things, the record should be expanded to explore what caused the promising placement with the foster father to end, with a view toward explaining whether the relationship with his foster father can be repaired, and the current relationship Jason has with the woman who previously provided "respite care" for Jason when he was placed with the foster father.
We are therefore constrained to vacate the order terminating defendant's parental rights to Jason, and we remand for further proceedings. If, upon considering the present circumstances the Division proceeds with the termination of parental rights, the primary focus of the court's remand hearing should be the adequacy of the current evidence regarding prong four of the statutory best interests test. The court need not address prongs one through three which have been conclusively established and affirmed in this opinion.
We now turn to defendant's argument that the judgment should be reversed because the trial judge allegedly erred in admitting certain evidence. Our review of evidentiary rulings is a lenient one: an abuse of discretion. We will not reverse unless the abuse of discretion has resulted in a denial of justice. State v. Nantambu, 221 N.J. 390, 402 (2015); N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012). We discern no such evidentiary errors here warranting reversal.
Defendant first complains that certain Division screening summaries and contact sheets should have been stricken to the extent they contained statements made by Jason. She argues that the statements were inadmissible hearsay, see N.J.R.E. 801(c), 802, and also should have been excluded under N.J.R.E. 401 and 403, as irrelevant and unduly prejudicial, to the extent Jason made allegations of abuse and neglect that were not substantiated by the Division.
Defense counsel raised only a hearsay objection below, and the court overruled it. Defendant is not entitled to a reversal or a new trial based upon the court's admission of this evidence.
Although defendant's trial counsel did not argue lack of relevance, Jason's allegations of abuse and neglect were clearly relevant to the guardianship proceeding, as they related to the question of harm under N.J.S.A. 30:4C-15.1(a)(1), N.J.R.E. 401, and not unfairly prejudicial to defendant. N.J.R.E. 403. With respect to defendant's hearsay arguments, we note that Rule 5:12-4(d) permits the admission of reports by the Division's staff personnel or professional consultants. We recognize that unsubstantiated embedded hearsay statements within those reports may be objectionable. However, in her post-trial opinion, the trial judge referenced Jason's allegations only to note the three instances of substantiated abuse and neglect. The judge did not cite in her opinion Jason's broader allegations, nor did she cite his other statements about which defendant complains on appeal.
Defendant next complains about the admission of parenting capacity evaluations performed by Dr. Cahill, which defendant argues contained complex and subjective information, and were done for the purpose of the permanency hearing, to determine if reunification should occur, rather than to assess for services. Defense counsel objected below to the admission of Dr. Cahill's reports, and the court ruled that the reports were admissible as reports from professional consultants of the Division, performed in connection with the abuse and neglect litigation rather than the guardianship proceeding, bearing an indicia of trustworthiness. See R. 5:12-4(d).
We find no abuse of discretion in that ruling. The purpose of Dr. Cahill's evaluations was "to determine if [defendant] could independently parent her son[.]" Her reports were dated June 26, 2012, October 25, 2012, and December 17, 2013. Thus, the reports were all prepared well before the Division filed the guardianship complaint in August 2014, and there is no indication that they were prepared in anticipation of the guardianship litigation.
The reports were admissible because they were prepared by a professional consultant to the Division, in connection with the abuse and neglect proceeding, with the purpose of guiding the Division in determining the appropriate course of action, and they were maintained in the regular course of the Division's business. R. 5:12-4(d); N.J.R.E. 803(c)(6); N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 346-47 (2010); N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 173-75 (App. Div. 2012); N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 129-33 (App. Div. 2010); N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 349-50 (App. Div.), certif. denied, 192 N.J. 296 (2007); In re Guardianship of Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969). In any event, in her post-trial opinion the judge never mentioned Dr. Cahill or referenced any of her reports.
Finally, defendant complains about the admission of reports from Dr. Ferguson-Thomas, who was only a permit holder under N.J.A.C. 13:42-3.1, and not a licensed psychologist, at the time she examined defendant and Jason. Defense counsel did not object at trial to the admission of Dr. Ferguson-Thomas's evaluation of Jason. She objected only to the admission of Dr. Ferguson-Thomas's evaluation of defendant.
The court overruled defendant's objection, finding the report admissible because it was prepared in the context of the abuse and neglect proceedings, to determine what services defendant needed, if any. The report was not objectionable under N.J.A.C. 13:42-12.2(d), because Dr. Ferguson-Thomas did not perform a custody/parenting time or termination of parental rights evaluation, as set forth in the regulation. The court also noted that her work had been supervised by a licensed psychologist, who reviewed and signed her report.
Dr. Ferguson-Thomas issued her report regarding defendant on January 17, 2012, more than two and a half years before the Division filed for guardianship in August 2014. At the time of the evaluation, the Division's plan was family reunification, and the purpose of the evaluation was "to provide a personality and psychological profile of [defendant] to assist the Division in the planning of service provision for [defendant]." The report was co-signed by Meryl E. Udell, Psy.D., a licensed psychologist, and Dr. Ferguson-Thomas's recommendations for services were consistent with numerous other evaluations performed in this case.
Dr. Ferguson's work did not violate N.J.A.C. 13:42-12.2(d), as argued by defendant. The regulation provides that "[a]pplicants for licensure who hold a temporary permit pursuant to N.J.A.C. 13:42-3.1 and 3.2 shall not perform custody/parenting time evaluations and termination of parental rights evaluations." Under N.J.A.C. 13:42-12.2(a), such examinations should only be performed by licensees who are qualified to perform them through "education, training, and/or supervision" in the following subjects: child growth and development; psychological testing; parent-child bonding; scope of parenting; adult development and psychopathology; family functioning; child and family development; child and family psychopathology; the impact of divorce or family dissolution on children; and the impact of age, gender, race, ethnicity, national origin, language, culture, religion, sexual orientation/identity, disability and socioeconomic status on custody/parenting time evaluations.
Pursuant to N.J.A.C. 13:42-12.2(b), where the following topics are involved, licensees must have "education, training and/or supervision in the specific topic or the licensee shall refer to a licensed health care provider who has education, experience, training and/or supervision": physical, sexual, or psychological abuse of spouse or children; neglect of children; alcohol or substance abuse that impairs the ability to parent; and medical/physical/neurological impairment that affects the ability to parent.
The evaluation performed by Dr. Ferguson-Thomas was not a custody/parenting time or termination of parental rights evaluation. Rather, it was an evaluation performed in an abuse and neglect proceeding, to determine what services defendant required. Thus, the regulation cited on appeal does not apply. Even if it did, a violation of the regulation would not prohibit admission of the report. Rather, it would affect the weight it should be given. Here, there is no indication that the court relied upon the report in any way, as the judge made no mention of Dr. Ferguson-Thomas in her post-trial opinion.
III.
For these reasons, we affirm the trial court's determination as to the Division's satisfaction of prongs one through three of the termination statute, and remand for further expeditious proceedings concerning prong four in light of Jason's post-judgment change in foster placement. The trial court shall have the discretion to oversee additional discovery, including supplemental or updated expert reports and bonding evaluations, in connection with prong four. The court shall conduct evidential hearings to evaluate such additional proofs in light of the applicable law. In the meantime, the trial court shall have discretion in the first instance to ascertain whether any interim visitation with defendant is warranted. The Division shall also have the prerogative to determine if it still wishes to pursue termination in light of the additional discovery. Depending upon the outcome of the remand proceedings, the Division, the Law Guardian, or defendant may pursue additional appellate relief.
Affirmed in part and vacated and remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION