Opinion
DOCKET NO. A-4645-12T1 DOCKET NO. A-5954-13T1
05-13-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. G.B., Defendant-Appellant. IN THE MATTER OF J.L.M., a minor. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. G.S.H. a/k/a G.S.H.B., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.L.M.M., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant in A-4645-12 and A-5954-13 (Anna F. Patras, Designated Counsel, on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent in A-4645-12 and A-5954-13 (Melissa H. Raksa, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the briefs in A-4645-12; Mary A. Hurley, Deputy Attorney General, on the brief in A-5954-13). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor in A-4645-12 and A-5954-13 (Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Accurso and Suter. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FN-08-125-10 (A-4645-12) and FG-08-35-13 (A-5954-13). Joseph E. Krakora, Public Defender, attorney for appellant in A-4645-12 and A-5954-13 (Anna F. Patras, Designated Counsel, on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent in A-4645-12 and A-5954-13 (Melissa H. Raksa, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the briefs in A-4645-12; Mary A. Hurley, Deputy Attorney General, on the brief in A-5954-13). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor in A-4645-12 and A-5954-13 (Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
In these related appeals, defendant G.B. (also known by the initials of G.S.H.B.) contests the Family Part's January 6, 2011 order determining after a fact-finding hearing that she abused and neglected her daughter J.L.M. (also known by the initials of J.L.M.M.), as well as the Family Part's final judgment entered on August 4, 2014, terminating defendant's parental rights after a guardianship trial. For the reasons that follow, we affirm both appealed decisions.
The appeals in this abuse and neglect ("FN") case, A-4645-12, and in the guardianship ("FG") case, A-5954-13, were originally consolidated. We de-consolidated the appeals at defendant's request to accommodate the briefing and listed them back-to-back. We now consolidate the appeals again for purposes of this opinion. --------
I.
The child at issue, J.L.M. (fictitiously, "Jenny"), was born in July 2008. Defendant earlier gave birth to another child, A.B., in July 1999, during a prior marriage. A.B. is in the custody of her biological father. Jenny's biological father is J.M., who lived with defendant for a period of time. His visits with Jenny were suspended in 2008 because of a restraining order procured by defendant.
The Division of Child Protection and Permanency ("the Division") removed Jenny on an emergent basis from defendant's care on February 13, 2010 after receiving a report from a neighbor, with whom defendant had a contentious relationship. The neighbor reported that defendant and Jenny, who was then seventeen months old, were both in defendant's car parked in a driveway with the engine running for about one to three hours at around 11:30 p.m. on a cold winter night. A police officer came to the scene and found the car still running, with defendant in the driver's seat asleep or unconscious. The child was in the backseat. There was frost on the windows because the heater was not on. Further investigation showed that defendant, who was sick with bronchitis or some other illness, had gone out with the child to a fast food restaurant and driven back to her house where she remained in the car with the child with the engine running for some time. Defendant had what appeared to be vomit on her clothing and seemed very drowsy.
The Division previously had investigated several other referrals concerning defendant's care of Jenny. One such prior report concerned an incident earlier in February 2010 in which defendant had left a pan unattended on the kitchen stove near the infant, which caught fire and set off the smoke detectors. Defendant failed to call the fire department or remove the child from the house even though it was filled with smoke. Defendant also did not cooperate with the fire officials in performing a check of the premises or allow EMS workers to evaluate her daughter.
After removing Jenny, the Division placed her with a maternal aunt and uncle in Virginia and filed an FN case in the Family Part. On the return date of the FN case, defendant consented to the placement of Jenny with the relatives in Virginia and agreed to make arrangements for visitation in that state. The matter was then left to be resolved in a non-dissolution ("FD") proceeding with the aunt and uncle. However, J.M., who had not initially been served with the complaint or received notice, surfaced and contested the placement. At that point, the Division reinstated the FN matter and proceeded with a fact-finding hearing. J.M. eventually agreed to a voluntary surrender of his parental rights to defendant's relatives in Virginia.
The trial court found after the ensuing fact-finding hearing that took place over three intermittent dates in 2010 that defendant's behavior in taking the child with her on a cold night and then confining her to the car without heat in the driveway for at least fifteen minutes to an hour constituted abuse and neglect. In her written decision dated January 6, 2011, Judge Mary K. White found that defendant had placed Jenny at risk of harm, as defined by N.J.S.A. 9.6-8.21(c)(4)(b), by taking the child
out that cold late night for no real or minimally adequate reason given [defendant's] physical condition. [Defendant's] explanations for going out that night are inconsistent, illogical, and simply not credible. She was ill by her own account for months and that particular night had a 103 degree fever. Foreseeably, she was not able to manage getting back into the home and out of the running car without succumbing to the symptoms of her illness. It is clear that she was either deeply asleep or otherwise unconscious when the officer arrived. . . . This situation placed [Jenny] at risk in a number of ways . . . . The two could have been injured if the vehicle took in carbon monoxide or went out of gear while she was unconscious. The driving risks attendant in driving to a McDonald's in that condition on a cold night
with accumulated snow are similar.
The judge also noted that defendant did not ask her neighbors for help, who presumably would have come to her aid that night since "they [subsequently] signed onto a safety plan without hesitation." She had also given the Division, which had been involved with the family since December 2009, "minimal to no cooperation[,]" and thus the Division could not offer her support or guidance while she was ill.
Judge White further concluded that defendant's "actions were not merely negligent" and that "the risk of harm was clear and foreseeable and recklessly disregarded by [her]." As the judge elaborated, "[t]here was no sensible or articulated reason for [defendant] to take this child out that late night. Her election to drive to McDonald's while ill . . . represented a willful disregard of a known and significant risk of [potential] injury." In light of these circumstances, the judge found defendant failed to provide Jenny minimally adequate care by
transporting [Jenny] unnecessarily and on a cold very late night with ice and snow accumulation and upon return[ing] home left the child out in a running vehicle with her while she was either deeply asleep or unconscious and therefore, unable to provide assistance to the child or respond to any emergency. It is clear that the mother and child were outside for at least fifteen minutes, given the location of the McDonald's in relation to her home, in the freezing cold. The hour of travel is
relevant because there are less pedestrian[s] and other vehicle operators out and about who may have been able to come to the assistance of the child and her mother.
In the interim, and over approximately the next two years, case management and compliance review hearings were regularly conducted before the trial court. Division records admitted into evidence reveal that from June 2010 to April 2011, defendant was often late for visits with Jenny; was arrested for driving while under the influence after hitting a parked vehicle; and had a falling out with the aunt and uncle over allegations that she had stolen documents from them.
Moreover, defendant's medical condition deteriorated during this time period and she had to participate in some of the conferences by telephone from rehabilitative facilities. In December 2010, defendant was involved in a car accident and suffered herniated disks, compression fractures, and a perforated colon. She was hospitalized for four months, undergoing the surgical installation of rods in her spine, the removal of a portion of her colon, and a colostomy. She developed serious abscesses and infections from the colostomy bag.
In April 2011, defendant was treated for depression, anxiety and ADHD, and hospitalized for pneumonia. In June 2011, she was admitted to the first of several rehabilitation facilities, where she has remained throughout these proceedings, except when she was hospitalized for what proved to be cascading and catastrophic health issues resulting from her underlying medical conditions and complications from injuries she sustained in automobile accidents. Notably, in September 2011, while on a day pass from a rehabilitative facility, defendant was involved in a second car accident, during which she suffered broken ribs, a punctured lung and spleen, and a concussion. She later fell on two occasions while at a rehabilitation center causing further injury, suffered an infection requiring heart valve surgery in October 2011, was hospitalized for pneumonia, developed an autoimmune skin disease, underwent a colostomy reversal in June 2013, suffered an abdominal wound dehiscence (wound rupture causing bowel to eviscerate), developed abdominal abscesses and infections, and suffered respiratory failure requiring intubation in August 2013.
Defendant received various services from the Division. Unfortunately, as a result of her physical injuries from an accident and her ongoing mental health issues, she has been hospitalized on a long-term basis for several years. Defendant has been unable to be in a position to attempt to care for the child.
Meanwhile, the child has been doing well with her relatives in Virginia. The Virginia relatives wish to adopt her. As of the time of the guardianship trial in 2014, Jenny was the age of six and had been living with the Virginia relatives for approximately five years.
A permanency hearing was concluded in November 2012, which changed the goal for the child from reunification to the termination of parental rights. That determination resulted in a guardianship complaint under the "FG" docket and ultimately a guardianship trial.
The guardianship trial consumed over nine intermittent days from February 2014 through August 2014. The trial was presided over by Judge White, the same judge who had conducted the fact-finding hearing in the FN case over three years earlier. Defendant, who was represented by counsel, participated remotely by telephone except for one day when she was ill. The Division presented testimony from a caseworker recounting the Division's long involvement with defendant and Jenny. It also presented testimony from Dr. James Loving, a forensic psychologist, who expounded upon the results of psychological and bonding evaluations. Dr. Loving noted that defendant had an "incredibly complicated array of mental health difficulties, medical complications, and practical barriers to independent living."
Dr. Loving observed that defendant had a "long history of very egregious incidents" that had placed her children at risk, including multiple car accidents, shopping with A.B. at 2:00 a.m. in 2006, and her conduct with Jenny on February 6, and February 13, 2010, that resulted in Jenny's removal. According to Dr. Loving, these "extreme and sometimes bizarre" incidents, reflected "erratic behavior and poor judgment" on defendant's part.
Dr. Loving further noted that defendant had a history of "non-compliance" with Division services, both as a result of practical barriers, including her medical issues, and also because she denied having a prescription drug dependency or needing services. According to Dr. Loving, defendant showed no insight in this "key area," and her prognosis for complying with substance abuse services was "very poor." He concluded that although defendant was intelligent and determined to achieve reunification, she was not capable of functioning as a safe, effective, stable parent at that time or in the foreseeable future. Further, Dr. Loving opined that even if defendant's medical and housing issues were resolved, she would still pose a risk "for acting in ways that are erratic and dangerous."
With regard to the bonding evaluations he conducted in June 2013, Dr. Loving found that Jenny had a very weak emotional attachment to her mother, akin to a relationship that a child would have with an extended family member and not with a centrally important parent. He explained that although Jenny was fairly comfortable with defendant and was at times responsive to her, for the most part, Jenny was indifferent to defendant and preferred to play independently. In contrast, Dr. Loving found that Jenny experienced strong, positive, and secure attachments to the aunt and uncle, her central important parent figures. The expert observed that Jenny was visibly comfortable with her aunt and uncle, enjoyed her time with them, and directly engaged them in her play.
Dr. Loving opined that, if Jenny were removed from her aunt and uncle's care, she would be at "high risk for experiencing severe and enduring emotional harm[,]" and that severing parental ties with defendant would not place Jenny at any risk for serious and enduring harm. He determined that, on the other hand, returning Jenny to defendant would do more harm than good because defendant "pose[d] a number of severe parenting-related risks, and at the most basic level, she is not in a position to provide a home to her child at this point in time." Further, the expert opined that Jenny would benefit from a "sense of permanency[,]" particularly where she had been in a sort of "limbo" for more than three years. Dr. Loving explained that "[t]he longer she remains in a situation where she doesn't have a permanency outcome, the higher her risk will be gradually over time, even though she's a girl who, at this point, is doing well developmentally, emotionally, [and] socially."
In her own defense in the guardianship trial, defendant, who was still residing in a rehabilitative facility, testified that she had only agreed to the custody arrangement with the Virginia relatives in February 2010 because her attorney allegedly told her that the case would be closed if she agreed to transfer temporary custody to the aunt and uncle, and then, if she moved away from her hostile neighbor, custody would be transferred back to her. Defendant also testified that she had received only sporadic visitation with Jenny, and had attempted to complete the services offered by the Division. She claimed she had been unable to do so either as a result of her medical condition and injuries, or because she had no access to transportation while she was residing with her parents; transportation that the Division allegedly refused to provide for her. She denied ever having suffered hallucinations.
Defendant did not present at trial any competing expert testimony to counter the opinions of Dr. Loving. The Law Guardian joined with the Division in advocating for termination.
On August 4, 2014, Judge White issued a comprehensive oral decision finding that the Division had proved by clear and convincing evidence each of the four elements of N.J.S.A. 30:4C-15.1(a), terminated defendant's parental rights to Jenny, and issued a corresponding order. With regard to prong one of the statute, N.J.S.A. 30:4C-15.1(a)(1), the trial judge found that the Division had demonstrated by clear and convincing evidence that Jenny's safety had been and will continue to be endangered by the parental relationship with defendant. Specifically, the judge found that defendant had engaged in increasingly poor judgment that led to Jenny's removal, including the house fire incident on February 6, 2010, when she refused to cooperate with the Division and the fire department, and the vehicle incident on February 13, 2010, when she took Jenny, out late "in the freezing cold[,]" and fell asleep in the unheated car because she was very ill. Additionally, the judge found that defendant also exhibited poor judgment in refusing to accept help from the Division, driving while suffering complications from diabetes, and leaving the emergency room against medical advice.
With regard to prong two, N.J.S.A. 30:4C-15.1(a)(2), Judge White found that defendant was unwilling or unable to provide a safe and stable home for Jenny and that delaying permanent placement will add to the harm. The judge determined that defendant had been unwilling to provide a safe home for the child because she had initially failed to complete services offered by the Division, and had refused to provide the Division with authorizations to obtain her medical records, which would have been helpful in understanding the nature of her complicated medical condition and prescription drug use. Further, the judge noted that after April 2011, defendant had been unable to provide a stable home for Jenny as a result of her medical condition, and was not capable of functioning as a safe, effective, stable parent either at the time of the trial or in the foreseeable future.
Even if defendant's medical and housing issues were resolved, the judge found that she would still pose a risk "for acting in ways that are erratic and dangerous," including driving while under the influence and driving while suffering from diabetic shock. Lastly, the judge found that Jenny, who had been in her aunt and uncle's care since she was seventeen months old, would suffer substantially from a delay in permanent placement and the potential of disrupting her strong bond with them.
Under prong three, N.J.S.A. 30:4C-15.1(a)(3), Judge White found that prior to defendant's hospitalization in April 2011, the Division had provided her with reasonable services to further the goal of reunification, including visitation, and other services, which she did not complete, including parenting classes, psychological evaluations, and substance abuse evaluations. The judge also found that the Division had looked at reasonable alternatives to termination throughout the litigation, including placement with the landlords, who had initially cared for the child before the emergency removal.
Finally, with regard to prong four, N.J.S.A. 30:4C-15.1(a)(4), the judge found that terminating G.B.'s parental rights would not do more harm than good relying substantially on the unrebutted expert testimony of Dr. Loving.
II.
In evaluating defendant's arguments urging reversal of the trial court's decisions in the FN and FG cases, we are guided by well-settled principles of appellate review for cases brought by the Division. A trial court's findings of fact in an abuse and neglect proceeding under the FN docket are entitled to deference, and will be upheld if supported by adequate, substantial, and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 38 (2011). Similarly, in reviewing a decision to terminate a parent's rights after a guardianship trial, "the trial court's factual findings should be upheld when supported by adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). "Concomitantly, reviewing courts should defer to the trial court's credibility determinations." Ibid. "Moreover, by virtue of its specific jurisdiction, the Family Part 'possess[es] special expertise in the field of domestic relations' and thus 'appellate courts should accord deference to [F]amily [Part] factfinding.'" Id. at 553 (alterations in original) (quoting Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)). We recognize, however, that "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Id. at 552 (quoting Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).
A.
We first consider defendant's appeal from the trial court's findings of abuse and neglect. Defendant argues that: (1) the judge improperly re-opened the FN case after it had been dismissed; (2) the evidence presented by the Division was insufficient to meet the requirements of Title Nine; and (3) the judge deprived her of her due process rights by allegedly prejudging the case. None of these arguments has merit.
The record reflects that on February 19, 2010, the return date of the order to show cause in the FN matter, the Division was apparently "satisfied" that defendant "had taken all steps necessary to protect [Jenny] by transferring custody to [the aunt and uncle], and as such . . . agreed to dismiss the complaint." Defendant, who at that time had an amicable relationship with the child's aunt and uncle, testified under oath that she consented to the agreement. In adopting and implementing that consensual resolution, the judge issued an order transferring custody to the aunt and uncle under the FD docket, and approved the dismissal of the FN complaint, setting forth that "the Division agrees to dismiss its FN litigation upon transfer of custody." The Division had the authority to enter into such a consent agreement under Title Nine. See, e.g., Dep't of Children & Families, Div. of Child Prot. & Permanency v. E.D.-O., 223 N.J. 166, 172 (2015) (in which a Title Nine complaint was dismissed pursuant to a consent order). See also Fall & Romanowski, Current N.J. Family Law, Relationships Involving Children, § 31:1-2(c) (2015), (before a civil abuse or neglect complaint is filed, the Division may attempt to "adjust" or resolve the matter informally pursuant to N.J.S.A. 9:6-8.35).
Although J.M. was not the accused parent in the FN litigation, he was entitled to an opportunity to oppose an award of custody of Jenny to a third party, and to service of the summons and complaint, in which he was a named defendant. See N.J.S.A. 9:6-8.19(a), -8.30(a), -8.38(a). In an effort to address that potential procedural infirmity concerning the father's omission, the judge on February 19, 2010 explained that she had retained the authority to reopen the FN litigation. The judge made clear that the dismissal of the FN complaint by the Division was to be "without prejudice," subject to an application by J.M. within thirty days. The judge explicitly stressed that there was "no guarantee" that she would not "have to reopen this litigation" once J.M. was located, and scheduled a return date under the FN docket to address the issue of service on J.M.
As a result, the court undoubtedly had the authority under the FN docket number to conduct a hearing on April 12, 2010, and to reopen the FN litigation to allow J.M. to contest the custody order. J.M. was entitled to an opportunity to be heard and the judge had specifically retained the authority to allow him to do so. Moreover, it is significant that on that date, defendant stated that she was not seeking to set aside her original agreement with the Division. The Division confirmed at that time that it did not then intend to pursue the FN litigation against her. Although the FN litigation at that stage was reopened as to the father, it was closed as to defendant. Thus, defendant's present argument that on April 12, 2010, her agreement with the Division was improperly made subject to "revision" without her consent and without a change in status to the child, is not persuasive.
In fact, the FN proceeding was not reopened as to defendant until May 12, 2010, when defendant, who was then represented by counsel, withdrew her consent to the custody agreement with the Virginia relatives and moved to have Jenny returned to New Jersey. Because Jenny's placement with those relatives had been necessitated by child welfare concerns in the wake of her emergency removal, the court proceeded with the FN litigation consistent with the declared public purposes of Title Nine. See N.J.S.A. 9:6-8.8(a). The court had the authority to reopen the FN litigation as to defendant to address those child welfare concerns, once defendant withdrew her consent to the custody arrangement.
The propriety of reopening the FN matter as to defendant in these circumstances is supported by the fundamental differences between an FN abuse-and-neglect matter and a non-dissolution FD custody matter. A parent seeking a change of custody in an FD case faces a different challenge than in an FN case. N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 112 (App. Div. 2010) (discussing the different standards for FN and custody cases solely involving private parties). Compare N.J.S.A. 9:2-4 (addressing the various custody factors in private party litigation) with N.J.S.A. 9:6-8.62 (requiring a party seeking to change an order of disposition in an FN matter to show that the placement's continuation "does not serve the purposes of the act"). A child is also entitled to be represented by a Law Guardian in an FN action, N.J.S.A. 9:6-8.23, and the Division, not a resource parent, is charged with investigating the allegations and presenting proof of abuse and neglect. N.J. Div. of Youth & Family Servs. v. D.P., 422 N.J. Super. 583, 593 (App. Div. 2011).
Consequently, once defendant withdrew her consent to the temporary custody arrangement, the Division and the trial court could reasonably perceive that the safety of the child was now at risk, and was best served by reopening the FN, not the FD, litigation. E.D.-O., supra, 223 N.J. at 178 (noting that the main focus of Title Nine proceedings is to protect the child); N.J. Div. of Youth & Family Services v. V.T., 423 N.J. Super. 320, 328 (App. Div. 2011) (noting that the purpose of fact-finding hearing in abuse or neglect proceeding is not to assign guilt to a defendant, but to determine whether a child is abused or neglected). See also N.J. Div. of Youth & Family Servs. v. C.H., 428 N.J. Super. 40, 60 (App. Div. 2012) (reversing a sua sponte dismissal of a Title Nine case).
Defendant had no reasonable expectation that the Title Nine proceeding would not be reopened after J.M. was located and she revoked her consent to the Virginia relatives' custody arrangement. See, e.g., N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J. Super. 428, 437 (App. Div. 2013) (in which the trial judge dismissed a guardianship complaint, and ordered reopening the Title Nine litigation).
We reject defendant's claim that she was deprived of her constitutional right to representation in this procedural setting. To be sure, "[w]hen faced with the temporary loss of parental rights, a parent's right to have legal representation is assured by the due process guarantee of Article I, paragraph 1 of the New Jersey Constitution and by N.J.S.A. 9:6-8.30(a)." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 634 (App. Div. 2010). We are mindful that "indigent parents in both [Title] Nine and [Title] Thirty proceedings are entitled to representation by the Office of the Public Defender." N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 113 (2011). See also N.J.S.A. 9:6-8.43(a). Even so, the right to be represented is "not unbounded." Ibid.; N.S., supra, 412 N.J. Super. at 634. "Even in criminal cases, the right to representation by a specific attorney must be balanced against the requirements of the fair and proper administration of justice." Ibid.
Here, defendant was represented by counsel at all critical stages of the proceedings, including the fact-finding hearing, permanency hearing, and guardianship trial. She was represented by counsel on February 19, 2010, the return date of the FN order to show cause. Thereafter, defendant was not represented by counsel for only approximately two months because the FN litigation had been dismissed. But, after the FN litigation was reopened, defendant was again represented by counsel throughout the proceedings, except from March 2011 to May 2, 2012, when she moved to have her appointed counsel relieved and proceeded pro se.
Turning to the merits, we find ample support in the record for the trial judge's finding that defendant abused and neglected her daughter. Defendant contends that there was no evidence that Jenny suffered any harm from being in the car in the driveway on February 13, 2010, nor any evidence that the child was in imminent danger. Defendant vastly underestimates the significance of the hazards posed by this situation.
There is no requirement under N.J.S.A. 9:6-8.21(c)(4)(b) of actual impairment to the child to support a finding of abuse or neglect. It is well established that a "court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 23 (2013) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). When, as in this case, "there is no evidence of actual harm, the focus shifts to whether there is a threat of harm." E.D.-O., supra, 223 N.J. at 178. That is, even in the absence of actual harm, "a finding of abuse and neglect can be based on proof of imminent danger and substantial risk of harm." A.L., supra, 213 N.J. at 23 (citing N.J.S.A. 9:6-8.21(c)(4)(b)).
The trial judge's conclusion here that defendant had recklessly exposed Jenny to a substantial risk of harm and that the child was in imminent danger of impairment, was clearly supported by the record. As Judge White found, defendant placed her daughter at risk of harm by transporting her unnecessarily to a fast food restaurant, late on a cold and snowy winter's night, despite the fact that defendant had been ill for weeks and apparently had a fever. No emergency had arisen that night, and there was no reason why defendant could not have asked her landlords to care for the child while she drove to the restaurant, given that they readily agreed to the safety plan.
This foreseeable risk of harm led to the child's imminent risk of impairment. In addition to subjecting her child to the risks inherent in driving while ill and late on a cold and snowy night, upon returning home, defendant either fell asleep or became unconscious in the driveway. She was thus unable to provide assistance to the child or respond to an emergency, including exposure to the cold or potentially to carbon monoxide or other dangers related to being in a running vehicle for a long period. In fact, the responding police officer, who the judge found credible, stated that he had to bang on the car window for two to three minutes before he could rouse defendant. The officer further testified that although the car was running, there was frost on the inside of the window, indicating that the heat was not on. See E.D.-O., supra, 223 N.J. at 194 (noting that weather is a factor in determining whether unattended child was abused or neglected).
The driveway episode was not an isolated incident. Indeed, as we have noted, a week earlier, defendant had been substantiated for neglect for leaving the child unattended in close proximity to the stove, upon which a pot caught fire, and filled the house with smoke. She was not willing at that time to allow the Division to assist her with safely parenting Jenny, nor did she allow the fire department personnel to inspect the house to ensure safety. The judge's well-grounded finding that defendant had acted in a grossly negligent or reckless manner reasonably supported an inference that the child was made subject by her mother to future danger.
Lastly, we reject defendant's claim that the court improperly prejudged her case before considering the proofs at the fact-finding hearing. R. 2:11-3(e)(1)(E). The stray comments from the judge noted in appellant's brief were manifestly benign in nature. The judge did not exhibit improper partiality by summarizing on the record the history of the case, or in commenting preliminarily on the evidence that she had heard thus far.
For all of these reasons, the January 6, 2011 order finding defendant liable under Title Nine for abuse and neglect was soundly reached and is affirmed.
B.
In her guardianship appeal, defendant argues that the proofs were insufficient to satisfy the four requirements for termination of parental rights set forth in N.J.S.A. 30:40C-15.1(a) by clear and convincing evidence. Defendant further contends that the court improperly failed to consider the possibility of kinship legal guardianship ("KLG") as an alternative to termination. We disagree.
We find no merit to defendant's contention that the four statutory criteria under N.J.S.A. 30:4C-15.1(a) were not sufficiently proven. Without repeating the facts here again at length, we affirm the court's statutory findings, substantially for the cogent reasons set forth in Judge White's lengthy August 4, 2014 oral opinion.
The first prong of the statute concerning harm or prospective harm to the child, N.J.S.A. 30:4C-15.1(a)(1), is amply supported by the fire incident, the driveway incident, and the persisting medical and mental health impairments that have caused defendant to lack the capability to be responsible for her daughter's safety and welfare. The evidence is likewise abundant under the statute's second prong, N.J.S.A. 30:4C-15.1(a)(2), that defendant was unable, if not unwilling, to eliminate that harm and provide a safe and stable home for Jenny. The third prong, N.J.S.A. 30:4C-15.1(a)(3), was likewise met, as the Division made more than reasonable efforts to offer defendant services, including substance abuse treatment, counseling, parenting classes, and therapy, which defendant did not complete. The Division also provided defendant with monthly and bi-monthly supervised visitation, to the extent it was feasible given defendant's medical condition and long-term hospitalization. Finally, the fourth prong of the statute, N.J.S.A. 30:4C-15.1(a)(4), was proven by the formidable evidence that termination would not cause the child more harm than good, as attested to by Dr. Loving's unrebutted and credible testimony, including his comparative bonding evaluations. There was no realistic future date as to when defendant could reasonably be expected to care for Jenny. The child, who had been with the Virginia relatives for approximately five years, needed permanency.
Defendant's claim that the trial court should have considered a KLG alternative is easily defeated by the fact that the Virginia relatives clearly expressed a strong desire to adopt Jenny. See N.J.S.A. 3B:12A-6(d)(3) (instructing that KLG is only proper when, among other things, "adoption of the child is neither feasible nor likely"); see also N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 135 (App. Div. 2011). KLG "cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1[(a)](3)." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004).
The balance of defendant's arguments challenging the final judgment of guardianship, including her repeated claim that the trial court prejudged her case and deprived her of due process, are devoid of merit and warrant no comment. R. 2:11-3(e)(1)(E). The judgment was both factually supported and legally sound and must be sustained.
III.
For these abundant reasons, the trial court's January 6, 2011 fact-finding order and the August 4, 2014 final judgment of guardianship are affirmed in all respects. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION