New Jersey Division of Child Protection and Permanency v. L.M.D.
| Decision Date | 07 July 2021 |
| Docket Number | A-2819-19,A-2820-19 |
| Parties | NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.M.D. and C.F.S., Defendants-Appellants, IN THE MATTER OF THE GUARDIANSHIP OF K.B.S. and C.S., minors. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 5, 2021
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No FG-07-0031-20.
Joseph E. Krakora, Public Defender, attorney for appellant L.M.D (Beth Anne Hahn, Designated Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for appellant C.F.S (Dianne Glenn, Designated Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Donna Arons, Assistant Attorney General, of counsel; Salima E. Burke, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Melissa R. Vance, Assistant Deputy Public Defender, of counsel and on the brief).
Before Judges Ostrer, Vernoia and Enright.
In these consolidated appeals, defendants L.M.D. (Laura) and C.F.S. (Carl) appeal from a Family Part judgment terminating their parental rights to their two daughters, K.B.S. (Kira) age four, and C.S. (Cara), age two.[1] Defendants contend the court erred by finding the Division of Child Protection and Permanency (the Division) presented clear and convincing evidence satisfying each prong of the best-interests-of-the-child standard embodied in N.J.S.A. 30:4C-15.1(a). Laura also argues the court erred by relying on hearsay embedded in a Division caseworker's investigative summary that was admitted into evidence without objection and with defendants' consent. Unconvinced by defendants' respective contentions, we affirm.
Kira was born prematurely to defendants in December 2016 and was discharged from the hospital on March 26, 2017. On June 26, 2017, the Division received a referral that Kira was taken via ambulance to Newark Beth Israel Medical Center (BIMC) with "seizure-like" symptoms. BIMC concluded Kira suffered from "bilateral acute subdural and subarachnoid hemorrhages," retinal hemorrhages, and a "healing nondisplaced [humerus] fracture."
Carl informed a Division investigator that shortly after defendants and Kira had arrived home on the evening of June 25, "he observed" Kira on the bed "shaking her head and . . . saliva [was] running down her head." He said "he thought [she] was choking," so he "patted her on her back" and "suctioned the phlegm out [of] her mouth and nose." Laura claimed she was not present when Carl first saw Kira shaking; she arrived "about [two] minutes" later; Carl "advised her . . . [Kira] was not responding"; and Carl "laid [Kira] on the bed," "sucked the [mucus] out[, ] and told [Laura to] call the ambulance." The investigator inquired if there was any history of trauma, and defendants advised that about "a week prior," they were driving with Kira and "were almost hit by another vehicle." They explained Kira's "car seat was not clicked in all the way," and when Carl "veer[ed] right to avoid an impact," her car seat "rolled forward[, ] leaving [Kira] upside down underneath."[2]
On June 30, 2017, Carl "completed a [v]ideotaped [i]nterview [s]tatement" with a detective from the Union County Prosecutor's Office, and, for the first time, reported "that he shook [Kira] for five seconds when she wasn't breathing." Using a doll, he demonstrated how he shook Kira.
On July 12, 2017, the court entered an order granting the Division care, custody, and supervision of Kira. The order also granted defendants supervised visitation. Kira was discharged from the hospital on July 17 and placed by the Division into the home of her current resource parent, E.A. (Emily).
In an October 2017 report, Dr. Monica Weiner of the BIMC Metro Regional Diagnostic and Treatment Center (RDTC) stated she found "no . . . organic medical causes . . . for [Kira's] . . . hemorrhages, leaving trauma as the [only] explanation." She opined the "trauma occurred within [hours to days] of [Kira] presenting to []BIMC," and that "the timing of [Kira]'s symptoms" rendered the near-car-accident "less likely to be the cause of her hemorrhages." She also determined that "if done with more force, the mechanism of shaking as [demonstrated] by [Carl was] consistent with [Kira]'s . . . hemorrhages."[3] She concluded "[t]he signs of healing" in Kira's humerus were "too recent for the . . . injury to have been caused by the [near-accident]," but Carl could have "possibl[y]" caused the injury by "roll[ing over]" on Kira in bed.
Dr. Weiner further advised there were "bruises . . . on the backs of both of [Kira's] . . . ears" and "small scratches or indentations behind [Kira's] left ear." She reported these injuries would result from "pulling or twisting the ear or [from] direct impact"; that defendants provided "no explanation" for the injuries; and that the injuries "should be considered . . . inflicted." At a November 2, 2017 hearing, the court continued the Division's care, custody, and supervision of Kira.[4]
In December 2017, Carl voluntarily waived his right to a fact-finding hearing and stipulated to "a finding of abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)." Specifically, he stipulated: (1) "he held [Kira] by her upper body and shook her," and "Dr. Weiner concluded . . . [this] mechanism of shaking would cause" Kira's head injuries; and (2) "on June 22, 2017, he awoke to find his arm . . . on top of [Kira]," and "Dr. Weiner opined . . . this . . . could have resulted in [Kira's] bone fracture." The Division determined the allegations of abuse or neglect against Laura were not established.
In December 2017 and January 2018, Dr. Eileen Lopez-Alonso conducted her first of four psychological evaluations of defendants. She concluded defendants "responded to [self-reported testing measures] in such a way as to portray [themselves] as exceptionally free of the common shortcomings to which most individuals will admit"; their responses were associated with "either an overt attempt to give socially desirable responses . . . to create a positive image or . . . a denial of even minor faults because of excessive concern [of] the consequences"; and their response styles likely indicated "an underreporting of symptoms."
Dr. Alonso stated that "[o]f most concern [were Kira's] unexplained injuries"-particularly to her ears-and defendants' "lack of [explanation] . . . limit[ed her] ability to comprehensively identify risk factors in this case." She found that "[w]ithout identifying the risk factors that exposed [Kira] to injury, she remain[ed] at risk." She noted that Laura's test scores and delay in getting Kira treatment "indicate[d] a need for parenting education," and she recommended defendants "attend domestic violence counseling, "[5] "have more frequent [supervised] visits with [Kira] . . . to promote bonding" until therapeutic visitation could be achieved, and "be re-evaluated" "[p]rior to any changes in visitation."
At a March 2, 2018 hearing, the court continued the Division's care, custody, and supervision of Kira, and required that the Division provide defendants with "more frequent[, ] . . . therapeutic visit[ation]." Defendants participated in therapeutic visitation through Tri-City People's Corporation (TCPC) from March to April 2018. Toni Caldwell, Executive Director and CEO of TCPC, reported "[t]here was no evidence of negative or harmful behavior exhibited in any visit" and defendants "presented as loving and engaging parents." She "recommend[ed] . . . reunifi[cation]."
On May 3, 2018, Emily wrote to the Division advising of her "desire to adopt" Kira. The Division provided her with an "Adoption and Kinship Legal Guardianship [(KLG)]" "[f]act [s]heet of [d]ifferences." On May 10 and 15, defendants began domestic violence counseling at the Clinic for Youth & Family Solutions (CYFS).
Laura gave birth to Cara on May 18, 2018 at Clara Maass Medical Center (CMMC). As a condition of permitting Laura to retain custody of Cara, the Division implemented a safety protection plan requiring Carl to "leave the home" and prohibiting him from visiting Cara outside of the presence of a relative or one of the parenting aides supplied to defendants. On May 24, 2018, the court entered an order granting the Division care and supervision of Cara, and continuing the Division's care, custody, and supervision of Kira. The court's order incorporated the safety protection plan and required that the Division incrementally increase defendants' individual unsupervised visitation with Kira.
Dr. Alonso conducted her second set of evaluations of defendants in June 2018. Prior to the evaluation, Dr. Alonso contacted Caldwell and Olawakemi Abulude, one of the parenting aides supplied to defendants, "to gain a better understanding of [how defendants] were presenting . . . and what their progress had been." Dr. Alonso advised that Caldwell and Abulude "[b]oth . . . reported . . . [defendants] were very appropriate, . . . engaged, . . . [and] consistent in treatment services[, ] and [both] spoke very highly of [defendants]."
Dr Alonso again found defendants "attempted to portray [themselves] as relatively free of the common shortcomings to which most individuals will admit," and their responses indicated an "underreporting of symptoms." She acknowledged defendants "were . . . receiving ongoing individual domestic violence counseling," and they "received positive reviews from their . . . therapists" and "reported gains from the services." She recommended that "[s]upervision for [Cara...
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