Opinion
DOCKET NO. A-5272-11T2
05-17-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. D.M.T., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF M.L.C., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David Valentin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fasciale and Maven.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-210-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (David Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM
D.M.T. appeals from a May 4, 2012 order terminating her parental rights to her daughter, M.L.C. D.M.T. argues that the judge erred by terminating her rights because the New Jersey Division of Youth and Family Services (the Division) failed to establish by clear and convincing evidence each prong of the best interests of the child standard, N.J.S.A. 30:4C-15.1(a). We disagree and affirm.
M.L.C. was born in 2004.
The judge conducted the guardianship trial over three days from April 13, 2012 to May 4, 2012. The Division called Linda Jeffrey, Ph.D.; defendant's great aunt, E.W.; Cameron Demetrius Briggs; Denita Truitt; and Lorissa Brady as witnesses. Defendant testified and called E.P. — her mother — as her witness.
In December 2008, the Division received a police referral stating that M.L.C.'s father, J.C., had recently died of an apparent drug overdose in the home while M.L.C. was allegedly present, and that defendant had fraudulently used her deceased husband's insurance card to obtain his prescription pain medication. The Division investigated the referral, determined that it was unfounded, and closed the case. As part of the investigation, the Division requested that defendant complete a substance abuse evaluation and continue to attend a program for methadone maintenance.
In June 2009, defendant attended South Jersey Behavioral Health for outpatient mental health services. In August 2009, defendant underwent a psychiatric evaluation and received a recommendation for individualized therapy. She was expected to discontinue her prescription for Xanax gradually.
Defendant had received services from this facility in 2005.
In May 2010, the Division received a referral from defendant's stepfather, S.P. He stated that defendant, who had recently been released from jail, had stolen checks from her grandmother, M.G.; used M.G.'s credit card without permission; and was trying to take M.L.C. out of the home even though defendant had nowhere to go. S.P. also told the Division that defendant had mental health issues and used heroin. He reported that M.L.C. was missing front teeth because defendant failed to take M.L.C. to the doctor. The Division called the police to investigate the matter.
When police arrived at M.G.'s home, M.G. and defendant were involved in an altercation over money. One of the officers discovered M.G.'s checks in defendant's purse. Although M.G. declined to press charges, M.G. informed police that M.G. frequently slept with her credit card between her buttocks due to defendant's history of theft. The officers noted that the home was "disgusting" and cluttered with trash and dirty clothes.
The officer noticed eight track marks on defendant's arms and that her lips were excessively dry. The police report indicated that "the marks are clearly self-inflicted" because "[t]he marks go around the mother's arm, not vertically up her arm." Defendant admitted to the police that she had used heroin. M.L.C. stated to the police officer that her "mother keeps needles in her drawer under papers and puts the needles under her foot and cries because it hurts." Defendant's family members informed the officer that defendant was "high." The officer then spoke with the Division.
On the same day, Division caseworker Kim Williams arrived at the home and verified that the home was "cluttered and messy" and the carpets were "filthy." Defendant's pupils were dilated and her speech was garbled. Defendant informed Williams that she had not abused crack in eleven years, but was addicted to prescription pain medication. M.L.C. told Williams that her diet consisted of "snacks and that's it" and that she "sleeps with her mom-mom because her mom uses drugs."
Williams initiated a Dodd removal of M.L.C. When Williams informed defendant that she was removing M.L.C., defendant left the apartment and refused to sign the Dodd paperwork. Defendant was also unwilling to attend an in-patient drug program.
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.
In June 2010, Williams returned to defendant's residence to discuss M.L.C.'s placement and develop a case plan. Again, Williams noted that the home was "dirty," including trash on the floors, boxes cluttered in the hallway, and ashtrays filled with cigarette butts. During this meeting, defendant informed the caseworker that she preferred that M.L.C. be placed with R.W. and E.W., defendant's great uncle and aunt and M.L.C.'s godparents. If they were not approved, then defendant stated that her mother, E.P., and stepfather, S.P., should be considered.
During the June 2010 visit, defendant informed Williams that her physician had prescribed Xanax, Abilify, Celexa and Zonisamide, but defendant was unable to produce documentation from the doctor to that effect. When Williams requested to see the pills, defendant produced the Zonisamide and "a make-up container with [seven-and-a-half] pills of Xanax." Defendant stated the remaining pills were stolen. Defendant indicated that she was taking Percoset, but she was unable to produce a valid prescription. She also admitted that she was preparing heroin needles for someone else. Defendant stated that she had enrolled in the daily methadone treatment program with Delaware Valley Medical that day.
On June 2, 2010, M.L.C.'s family, including defendant, E.P. (defendant's mother), S.P. (stepfather), M.G. (grandmother), R.W. (great uncle), and E.W. (great aunt), met to discuss M.L.C.'s placement, as well as reunification between defendant and M.L.C. Defendant again stated that she wanted M.L.C. to be placed with R.W. and E.W., because they have had a longstanding relationship with the child.
On June 3, 2010, a Division caseworker met with Kathy Gogan, M.L.C.'s counselor at Blackwood Elementary School. Kogan stated that M.L.C. was performing "severely below grade level," especially in reading. The caseworker also met with Audrey Taormina, M.L.C.'s therapist at the Blackwood Center for Counseling, where M.L.C. was receiving grief counseling for the loss of her father. Taormina recommended a psychological evaluation for M.L.C.
In June 2010, the Division approved the W's for M.L.C.'s placement. Thereafter, a Division caseworker conducted monthly home visits at the foster parents' home, where M.L.C. recently had been placed. M.L.C. expressed that she liked living in their home and she had her own room and bed.
Also during this time, defendant and M.G. visited with M.L.C. at the foster parents' home. When defendant appeared for a visit, she was described as "high" and falling asleep. E.W. advised defendant that she could not visit M.L.C. if she was under the influence of drugs, so E.W. began picking up defendant and M.G. from their home in order to prevent defendant from arriving "high." By July 2010, defendant had stopped attending counseling at South Jersey Behavioral Health for approximately three months, but continued her medication monitoring with Delaware Valley Medical Center.
On June 25, 2010, Larry N. Seidman, Ph.D., conducted a psychological evaluation of defendant. Dr. Seidman administered several cognitive, personality, and parenting tests. The cognitive tests showed that defendant functioned in the Low Average range of intelligence and had significant difficulties with basic reading. Dr. Seidman diagnosed defendant with post-traumatic stress disorder; schizophrenia; generalized anxiety disorder; major depressive disorder, recurrent, severe with psychotic features; bereavement; and paranoid, avoidant, and antisocial personality features. He recommended, among other things: (1) a psychiatric evaluation and appropriate psychotropic regimen for symptoms of a thought disorder; (2) weekly psychotherapy; and (3) a substance abuse evaluation.
On July 21, 2010, Dr. Seidman conducted a psychological evaluation of M.L.C. Dr. Seidman administered cognitive and achievement tests, personality tests, and projective tests. He opined that M.L.C. was functioning within the central range of intelligence, but lacked fundamental reading skills. He diagnosed M.L.C. with Adjustment disorder with mixed anxiety and depressed mood resulting from her father's death and lack of family support; Rule-Out Attention-Deficit Hyperactivity Disorder; victim of child neglect; and oppositional defiant disorder. M.L.C. also began bi-weekly counseling and received Child Study Team testing for learning disabilities.
In August 2010, caseworker Brady met with defendant. Brady referred defendant to Horizon Counseling for individual therapy and parenting classes. Also in August 2010, defendant was transferred to Urban Treatment for her methadone maintenance and intensive outpatient substance abuse and mental health services, and the court ordered her to attend individual therapy once weekly and group therapy twice weekly.
In September 2010, Urban Treatment Center personnel reported that defendant missed several therapy sessions. Defendant tested positive for opiates, benzodiazepines, and methadone. Defendant also missed twelve scheduled Horizon therapy sessions and refused to schedule any additional appointments.
Beginning in October 2010, defendant began falling asleep during Urban Treatment Center group therapy sessions and did not attend several scheduled SODAT random urine screenings. An Urban Treatment staff member informed a Division caseworker that she believed that defendant was overmedicated from medication she was receiving from outside of the facility. She also continued to miss appointments at Horizon.
On October 5, 2010, defendant tested positive for cocaine. An Urban Treatment Center staff member recommended defendant for long-term, in-patient care, and the Division recommended defendant to the Center for Family Services for a substance abuse evaluation. Defendant never complied with either referral and the case files were closed.
Defendant missed several visits with M.L.C. and E.W. refused to continue supervising them. Consequently, on October 22, 2010, the court ordered supervised visitation between defendant and M.L.C. at the Camden South Local Office. Defendant often fell asleep when she attended visitations.
From October 4, 2010 until February 2011, defendant had minimal, if any, contact with either the Division or M.L.C. At trial, Brady testified that defendant provided a disconnected phone number, and that the only address on file was a post office box. Defendant later admitted that during that time, she was homeless. Defendant's November 8, 2010 urine sample was diluted with water.
Meanwhile, Brady continued monitoring M.L.C.'s progress with the foster parents. During all home visits, M.L.C. appeared to be clean and happy, and the home was well-maintained. In January 2011, M.L.C. had her final Individualized Education Program (IEP) meeting, began receiving extra assistance with reading and speech, and continued with counseling. M.L.C. also received extensive dental work due to her rotting teeth.
In February 2011, the Division reconnected with defendant. Defendant stated that she found an apartment in Bellmawr, where she lived for one month until she was evicted. On February 15, 2011, defendant married R.T. Defendant informed caseworker Truitt that their income source consisted only of State benefits.
At trial, defendant testified that she knew that R.T. had a significant criminal history, including robbery, drug possession, and possession of a controlled substance within 1000 feet of a school.
In February 2011, defendant and M.L.C. resumed visitation, but at times, defendant would either arrive thirty to fifty minutes late or not appear. Brady reported that defendant "appeared to be high." At times, M.L.C. appeared uneasy and reluctant to hug defendant. Other times, defendant and M.L.C. hardly interacted. During a May 2011 visit, defendant fell asleep while pretending to play with a toy drum. Defendant then started to cancel visits.
E.W. testified at trial that M.L.C. would make comments like, "Mommy didn't show up" and "She must be off her rocker." By July 2011, M.L.C. asked when it would be her turn to cancel visits, and the court ordered that future visits would occur only at M.L.C.'s request. M.L.C. told her Center for Family Services counselor that she "no longer want[ed] to continue visits with her biological mother because she did not find them to be helpful and because [her] mother slept throughout most of the visits."
Also during this time, on March 4, 2011, Brady attempted to complete another scheduled home visit at defendant's newest residence, but defendant failed to appear. Additionally in March 2011, defendant resumed her Horizon therapy sessions. Again, defendant began missing her appointments, starting from March 16 until June 9, 2011. Each time defendant missed two consecutive appointments, Horizon discharged her and the Division had to re-refer her for services. Defendant also failed to appear for parenting classes.
Brady testified that she was concerned that defendant was abusing prescription medication again. Brady explained that defendant showed her an empty bottle from a month's worth of pills, and indicated that defendant consumed them in a few days. Although the Division referred defendant three times for substance abuse evaluations, defendant failed to attend any of her nine scheduled appointments. Defendant stated that she did not have transportation. Brady gave her monthly bus passes, but defendant still failed to attend.
In July 2011, caseworker Briggs continued to refer defendant for services, including parenting classes and a psychiatric evaluation. He made two referrals to the Center for Family Services in March and May 2011, but defendant missed those appointments. When defendant finally attended the Center for Family Services for evaluation in September 2011, she attended half of one session and missed several scheduled follow-up appointments.
He was assigned to the case from May until December 2011.
Dr. Jeffrey evaluated defendant on October 19, 2011, and November 15, 2011. She diagnosed defendant on Axis I with Adjustment Disorder, Delusional (Paranoid) Disorder, Generalized Anxiety Disorder, and Mood Disorder NOS. Dr. Jeffrey concluded that on Axis II, defendant showed Narcissistic Personality Disorder with Paranoid and Obsessive Compulsive Personality features. On Axis V, defendant received a Global Assessment Functioning score of forty, which meant a major impairment in several areas, including work, family relations, judgment, thinking, and mood.
Dr. Jeffrey also conducted bonding evaluations on October 19, 2011, between defendant and M.L.C., as well as the foster parents and M.L.C. In November 2011, Dr. Jeffrey also evaluated defendant's husband, R.T. She diagnosed R.T. with Personality Disorder, Depressive Disorder NOS, Personality Disorder NOS with borderline schizotypal and paranoid features.
By January 2012, Truitt noted that defendant and M.L.C. had not had a recent visit. In March 2012, Truitt conducted a home visit with defendant and R.T. Defendant informed Truitt that the Division had not placed her in any services, but she did attend services on her own. Defendant stated that she completed her Substance Abuse Initiative (SAI) assessment twice, was attending Cooper House, enrolled in anger management, and was attending SODAT. Defendant never supplied the Division with any certificates of completion.
Caseworker Truitt later learned that defendant had not attended SODAT since January 2012.
On May 4, 2012, Judge Fratto rendered his decision that the Division met its burden of proof establishing that defendant's parental rights should be terminated and the Division should implement an adoption plan for M.L.C.'s foster family. In rendering his decision, Judge Fratto correctly employed the four-prong test contained in N.J.S.A. 30:4C-15.1(a), which requires that the Division prove by clear and convincing evidence:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (discussing the four prongs).
(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. . . .;
(3) The [D]ivision 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.
Judge Fratto determined that there was clear and convincing evidence to meet the first prong and stated that
I find that [M.L.C.'s] safety and health and development [were] endangered by the parental relationship, not only physically as far as her teeth are concerned and other physical problems, but mentally. . . .M.L.C. informed the Division caseworker that she had witnessed her mother crying while injecting needles into various parts of her body. M.L.C.'s comments are bolstered by various track marks visible on defendant's arms. Other family members also reported that defendant used drugs and appeared "high." M.L.C. was malnourished and received extensive dental work to repair her rotting teeth.
In New Jersey Division of Youth & Family Services v. A.L., 213 N.J. 1, 23 (2013), the Supreme Court opined that "[t]he proper focus is on the risk of substantial, imminent harm to the child, not on the past use of drugs alone." Here, the record supports a finding that defendant created an environment that placed M.L.C. in such harm. Defendant has a drug problem and M.L.C. has acknowledged her exposure to defendant's drug use. Therefore, the record amply supports the judge's findings that the safety, health, or development of M.L.C. has been or will continue to be endangered by the parental relationship.
The judge also found that there was clear and convincing evidence to meet the second prong. He stated:
I find that [defendant] is unable to eliminate the harm facing [M.L.C.], in part because of her addiction to prescription drugs[,] and in part[,] because of her evaluation . . . given to her by Dr. Jeffrey as to her narcissism and other features. I find that separation of [M.L.C.] from the foster parents . . . would cause serious and enduring and emotional and psychological harm to her. And therefore the harm would not — could not be eliminated if she were removed.
The credible expert opinions demonstrate that it is highly improbable that defendant could safely and effectively parent M.L.C. Dr. Seidman concluded: "Results of the present evaluation indicate that it can be said with a reasonable degree of psychological certainty that [defendant] does not have the psychological stability, reality testing, and functional consistence to appropriately meet her five[-]year-old daughter's basic needs for security, nurturance, and parental guidance."
In his July 2010 assessment of M.L.C., Dr. Seidman opined that "child care responsibility may be neglected, and the potential for significant child neglect exists." He stated that M.L.C. "lack[ed] fundamental reading skills," which "could be a function of non-exposure or a harbinger of a reading disability."
In her psychological evaluation of defendant, Dr. Jeffrey concluded:
Based upon a reasonable degree of psychological certainty, the results of this psychological evaluation indicate that [defendant] has adjustment, prescription drug problems, [and] mental health problems that are highly likely to adversely affect and decrease her parenting capacity. She is not prepared to provide a minimal level of safe parenting. [M.L.C.] would be highly likely to be at risk for serious harm if placed in the care of [defendant].Furthermore, Dr. Jeffrey recommended that defendant "complete drug treatment to address her long-term use of benzodiazepines, that the status of her methadone treatment compliance be determined, and that she receive intensive therapy to address issues of social mistrust."
Dr. Jeffrey also evaluated defendant's husband, R.T., and concluded:
[R.T.] has adjustment, mood regulation[,] and personality disorder problems that are likely to decrease his parenting capacity. He lacks knowledge of and about [M.L.C.] He has significant issues that need to be addressed. He is not prepared to provide a minimal level of safe parenting. Placement of [M.L.C.] in the care of [R.T.] would be likely to expose her to risk of harm. This
evaluator does not recommend the placement of [M.L.C.] in the care of [R.T].
At trial, Dr. Jeffrey testified that these "are the kind of problems that can impact on the individual's ability to be attuned to the needs of the child and to be an appropriate role model for the child." Dr. Jeffrey testified that defendant wished to "co-parent" with R.T., but they were incapable of caring for M.L.C. as a unit because their individual issues would exacerbate the issues the other had.
The credible evidence shows that defendant is unable to manage her mental health and drug abuse problems, and she has been unwilling to comply with court-ordered treatment and service recommendations. She failed to attend almost every therapy session, attended drug counseling once out of her three required sessions, where she often fell asleep, and never attended any parenting classes. More importantly, defendant failed to attend her supervised visits regularly with M.L.C., including a span from October 2010 until February 2011 where she did not attend any visits. M.L.C. reported to the caseworker that when her mother did not show up to these visits, she became sad. At M.L.C.'s request, these visits were later terminated and never resumed.
On the other hand, M.L.C. has demonstrated developmental growth since being placed in the Division's custody. In January 2011, M.L.C. was diagnosed with a learning disability; however, two months later, it was reported that M.L.C. had shown significant progress in her reading skills. M.L.C. continuously received therapy and additional assistance in reading and speech. M.L.C.'s counselor reported that M.L.C. "is actively engaged and is thriving in her foster home."
As for the third prong, Judge Fratto found that the Division made reasonable efforts to provide services to help defendant correct the circumstances that led to the child's placement outside the home. The judge stated that the Division
has made reasonable efforts to provide services . . . . They have offered . . . a variety of programs to the defendant. Those offerings were spurned. The defendant would not appear, or would appear late or would not call in. And they went over and above and offered and reoffered and reoffered the various services that would go toward possible reunification of parenting. . . . [T]he defendant did not take advantage of that and services were offered and they were reasonable.The Division offered numerous services, including substance abuse evaluations, psychological and psychiatric evaluations, transportation, individual psychotherapy, parenting education, visitation sessions with M.L.C., rescheduled appointments continuously while stressing the need for compliance, and bonding evaluations.
The Division also considered alternatives to termination of parental rights and ruled out any inappropriate family members. The judge stated that
[D]efendant apparently contends . . . that the Division made a conscious choice at the time of removal that the [W.'s] were going to be the caregivers and that the [W.'s] were going to be put in line for — to adopt [M.L.C.] at some point and that the Division proceeded at that — from that point on with blinders, so to speak, ignoring other paths that they could've taken[,] including [E.P.] as a source. I reject that contention. I find that the defendant and [E.P.] and other family members agreed that the [W.'s] would be the appropriate caregivers at the time of the family meeting.
. . . .
I do not accept [E.P.'s] testimony that from that time to now, some two years or so, she constantly attempted to get the Division to consider her as a custodial parent. The records do not reflect any such continuing effort. There is only her word for that.
Judge Fratto concluded that termination of parental rights would not do more harm than good. Judge Fratto ultimately determined "for the reasons stated by Dr. Jeffrey, I find that termination of parental rights will not only [not] do more than good, but that termination of [M.L.C.'s] involvement with the foster care would do substantial and serious harm which cannot be mitigated."
Dr. Jeffrey conducted bonding evaluations on both families, and she evaluated defendant and M.L.C. individually. Regarding defendant and M.L.C., Dr. Jeffrey reported:
Based upon a reasonable degree of psychological certainty, the results of this bonding evaluation indicate that [M.L.C.] is insecurely attached to [defendant]. [M.L.C.] displayed an affectionate tie to [defendant] but did not relate to her as a source of parenting authority, basic trust, security or belongingness. [M.L.C.] appeared to have adjusted to life with the godparents and referred to their house as her "home." An insecure attachment, in and of itself, places a child at risk for harm. It is also true that severance of an insecure attachment can cause some harm. Access to parental figures who can remediate this harm would be important in [M.L.C.'s] permanency planning. This evaluator does not recommend the placement of [M.L.C.] in the care of [defendant] who is not prepared to provide a minimal level of safe parenting.
Contrary to defendant's assertions, Dr. Jeffrey testified at trial as to the meaning of an "insecure" attachment:
I concluded that [M.L.C.] was insecurely attached to [defendant]. And what that means is that there is an affectionate tie, although there is some ambivalence in that tie; an affectionate tie from [M.L.C.] to [defendant]. She did not relate to [defendant] as a parenting authority. She did not relate to her as a source of basic trust or security. But she did relate to her in terms of an affectionate tie.
An insecure attachment does not mean a superficial attachment. It means that one
or more components of a secure attachment is not present. And a secure attachment requires that there be an affectionate tie, but that there also be a sense of security; that this person the child looks to for their sense of safety; that this is the person the child looks to in terms of the . . . ground of their being, where they will be safe.
And I concluded on the basis of what I had observed in their observations, that what was present was an insecure attachment. And I note that an insecure attachment is problematic for the child, because it means that they have attached, in terms of a[n] affectionate tie, to someone that they cannot necessarily trust. . . .
[T]hat's why a secure attachment is so psychologically important, . . . because it unites the issues of love, trust, and respect for authority.
And, when one of those components is missing, what the child has been taught by that relationship is something that may become very problematic for that child later in dealing with other people.
Regarding M.L.C. and her foster parents, Dr. Jeffrey opined that M.L.C. had "in effect, put down roots with her relative caregivers and relates to them as the secure base, the source of trust and security." She recommended that M.L.C. "remain in the care of her relative caregivers."
Dr. Jeffrey warned if the secure relationship between M.L.C. and the foster parents was severed, M.L.C. would be placed at risk for serious and enduring harm. She further testified that it was unlikely that defendant could mitigate M.L.C.'s loss since she was not prepared to provide a minimal level of safe parenting to M.L.C.
Even as early as September 2010 - two months after M.L.C.'s removal - the Center for Family Services, where M.L.C. received grief counseling, reported that "[t]here seems to he a supportive, caring[,] and nurturing hond hetween [M.L.C.] and her foster parents from this counselor's discussion [with] Mr. and Mrs. [W.]" and that her foster parents "appeared to he engaged and receptive to [M.L.C.'s counseling] sessions." M.L.C. constantly told caseworkers that she desired to live permanently with the W. family.
Other evidence indicates that a termination of defendant's parental rights would not do more harm to M.L.C. As noted above, defendant continuously failed to appear for her supervised visitation appointments with her child. When the court allowed visitation to occur upon M.L.C.'s request, M.L.C. no longer exercised her right to have visits with defendant. R.W. and E.W. wish to adopt M.L.C., and M.L.C. has stated on many occasions that she would like to live with the W. family and did not want to live with defendant. Judge Fratto also noted that M.L.C. desired to change her last name to that of her foster family.
Moreover, caseworker Truitt, as the records custodian, testified extensively about the circumstances of this case. Judge Fratto found her testimony to be "extremely credible." N.J.R.E. 803(c)(6) expressly permits the admissibility of opinions and diagnoses contained in otherwise admissible business records to the added requirements of N.J.R.E. 808, which provides:
Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.There is nothing to support defendant's contention regarding the inadmissibility of caseworker Truitt's testimony and the court's reliance thereon.
The trial court correctly determined that defendant's parental rights should be terminated in M.L.C.'s best interests. The child's compelling need for permanency, see, e.g., N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004), supported the conclusion required by the fourth prong. See In re Guardianship of D.M.H., 161 N.J. 365, 386 (1999).
Our standard of review is limited. In re J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial[,] and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are "so manifestly unsupported by or inconsistent with the competent, relevant[,] and reasonably credible evidence as to offend the interests of justice," Cesare v. Cesare, 154 N.J. 394, 412 (1998) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (instructing that trial court findings receive deference unless "so wide of the mark that the judge was clearly mistaken"). Here, the judge's findings are supported by adequate, substantial, and credible evidence.
For these reasons and others fully explained in Judge Fratto's oral opinion dated May 4, 2012 with which we substantially agree, we affirm the judgment under review.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION