RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3704-18T3

NEW JERSEY DIVISION

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

T.L.M.,

Defendant-Appellant,

and

Y.R.F.,

Defendant.

__________________________

IN THE MATTER OF THE 

GUARDIANSHIP OF A.Y.M., 

and E.Y.T.M., 

Minors.

__________________________

Submitted January 27, 2020 – Decided

Before Judges Rothstadt, Moynihan and Mitterhoff.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

February 18, 2020
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A-3704-18T3

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Essex County, Docket 

No. FG-07-0021-19.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Robyn A. Veasey, Deputy Public Defender, 

of counsel; Laura Orriols, Designated Counsel, on the 

briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Donna Sue Arons, Assistant Attorney 

General, of counsel; Merav Lichtenstein, Deputy 

Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minors (Meredith Alexis Pollock, Deputy 

Public Defender, of counsel; Louise M. Cho, Assistant 

Deputy Public Defender, on the brief).

PER CURIAM

Defendant T.L.M. appeals from an April 11, 2019 guardianship judgment,

ordering the termination of her parental rights to her sons, A.Y.M. (Austin) and 

E.Y.T.M. (Evan).1 On appeal, defendant argues that the Dodd removal,

2

see

1

 One of the children's fathers is unknown, and the other putative father failed 

to participate in the trial or appeal from the final judgment. Additionally, 

pursuant to Rule 1:38-3(d), we use initials and fictitious names to protect the 

confidentiality of the participants in these proceedings.

2

 "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. The Act was authored by former Senate President 

Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 

N.J. Super. 593, 609 n.2 (App. Div. 2010).
3

A-3704-18T3

N.J.S.A. 9:6-8.29, of one of her children was improper, that the Division of 

Child Protection and Permanency (Division) did not prove all four prongs of the 

statutory best interests of the child test under N.J.S.A. 30:4C-15.1(a), that 

certain documents were improperly admitted under N.J.R.E. 803(c)(6) and Rule

5:12-4(d), and Rule 5:12-4(d) is unconstitutional. The Division and the Law 

Guardian contend that the judgment and order should be affirmed. 

After reviewing the record in light of the applicable legal standards, we 

affirm substantially for the reasons stated by Judge Nora J. Grimbergen in her 

written decision issued with the guardianship judgment, in which she found that 

the Division proved the four prongs of the best interests standard articulated in 

N.J.S.A. 30:4C-15.1(a). We conclude there is substantial credible evidence in 

the record to support the judge's determination that was based primarily on 

defendant continuously refusing to participate in treatment for her substance 

abuse and mental health issues, which prevented her from being a fit parent. 

The facts derived from the record as found by the trial judge are 

summarized as follows. Austin was born in February 2017, and Evan was born 

in May 2018. At the time Austin was born, defendant already had two additional

children from other relationships who were no longer in her custody. Those two 

children were the subject of the Division's investigations between 2013-2016. 
4

A-3704-18T3

Although defendant was never substantiated for abuse or neglect, the Division 

had concerns about defendant's need for substance abuse treatment before she 

could care for her children. The concerns were addressed when a court ordered 

in a custody action that the two children be placed with their relatives because 

defendant refused to seek any treatment.

The Division became involved with Austin when a reporter contacted the 

Division in April 2017 about one of defendant's older children being found at 

the bottom of a hotel swimming pool before he was revived and able to survive

his near drowning due to the medical assistance provided by a hotel guest. After 

investigating how the child nearly drowned, the Division determined from 

defendant and her younger sister that defendant left the child under the 

supervision of another person at the swimming pool knowing that her child 

could not swim and leaving him without a life vest.

Defendant initially attempted to arrange shared custody of Austin with his 

maternal grandmother, but the effort failed when one or both of them failed to 

pursue the application in court. Later, the Division was informed that defendant

changed the child's placement to his godmother, which the Division later 

approved subject to the godmother's agreement not to let defendant remove the 

child from her. However, in July 2017, the Division conducted a Dodd removal 
5

A-3704-18T3

and placed Austin with a resource family when defendant threatened the 

godmother with harm if she did not turn Austin over to defendant. When the 

Division provided defendant with notice of the Dodd removal, defendant 

informed a Division worker that she failed to seek any treatment for her 

substance abuse. In its supporting complaint filed for care, custody, and 

supervision under N.J.S.A. 30:4C-12 (Title Thirty), the Division alleged

defendant did not have stable housing or income, that she continuously failed to 

get substance abuse treatment, and repeatedly threatened to take Austin. 

During the ensuing months, the Division made arrangements for defendant

to visit with her child and have her evaluated for and attend substance abuse 

treatment programs. In addition, as a result of a family meeting that included a 

family friend willing to take custody of the child, the Division investigated the 

family friend for placement, but she was ruled out based on her having an open 

case with the Division. 

Court orders directed toward reunification were issued in the Title Thirty 

litigation directing defendant to secure income and housing, and to undergo a 

psychological and substance abuse evaluation. Although defendant did not seek 

out the substance abuse treatment, she did participate in a psychological 

evaluation. 
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A-3704-18T3

During the evaluation, defendant admitted hearing her dead brother talk 

to her, being depressed, and continually using marijuana on an almost daily 

basis. She also confirmed that she did not have stable housing, was living with 

various friends and family members, and that she did not have a job. 

The psychologist found that defendant had anger management issues and 

that defendant demonstrated she suffered with depression and anxiety, which if 

left untreated, prevented her from safely parenting her children. The doctor 

recommended that defendant be evaluated by a psychiatrist, participate in 

therapy and outpatient drug treatment, have supervised visits with her child, 

obtain and maintain appropriate housing and employment, and participate in 

parenting skills training programs. These recommendations were later 

incorporated into additional court orders. 

Pursuant to the court's order, a psychiatric evaluation and individual 

therapy were arranged for defendant. At the psychiatric evaluation, defendant

acknowledged her substance abuse, that she used marijuana and "Molly 

(MDNA, Ecstasy)" within the past three months. She indicated that she: had 

been depressed since Austin's birth, had a history of suicide attempts, had no 

support, got treatment in the past due to her anger issues, she was "sad all the 

time," "her sleep was impaired," had no appetite, "was easily frustrated and 
7

A-3704-18T3

angered," had issues with concentration, and heard the voices of her deceased 

brother and aunt every day. Defendant stated that she used marijuana to "calm 

her down and that it [took] her mind off of her problems, help[ed] her sleep, and 

help[ed] with her appetite." 

The psychiatrist diagnosed defendant with various disorders and

recommended that defendant be medicated, referred to a substance abuse 

treatment program in a dual diagnosis program, which would address both her 

mental health and substance abuse issues, and after she completed a program, 

engage in therapy. In accordance with the doctor's recommendations, the 

Division made referrals for these services, but defendant failed to significantly 

comply with any of them.

In the meantime, after already ruling out defendant's mother, her friend 

who had a case with the Division, and the child's godmother as possible 

placements, the Division at defendant's request, contacted a cousin from North 

Carolina who indicated she was willing to have Austin placed with her. The

Division initiated an interstate evaluation request, but after the Department of 

Social Services in North Carolina met with the cousin on March 23, 2018, and 

received one phone call from her on April 23, 2018, there was no additional 

contact, which prompted North Carolina to close the case on May 2, 2018. 
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A-3704-18T3

Additionally, in May 2018, defendant gave birth to Evan. Both mother 

and son tested positive for marijuana, and although defendant admitted she used 

marijuana a month before Evan's birth, the Division did not substantiate 

defendant for abuse or neglect because the child did not display any withdrawal

or other symptoms related to the marijuana. However, defendant informed the 

Division that she did not have any means to support or care for the infant until 

she "gets herself together." The Division established neglect based upon 

defendant's mental illness and her failure to comply with referrals for treatment, 

which affected her "sound judgement and rational behavior," and "created a real 

and significant risk . . . that [defendant's] actions or inactions placed [Evan] at a 

risk of harm." 

The Division amended its complaint to also seek custody of Evan. The

court then approved Evan's placement with the same resource family as Austin 

and ordered defendant to comply with substance abuse and mental health 

services that were to be provided by the Division. In June 2018, the court 

approved the Division's permanency plan for Austin, recommending termination 

of parental rights and adoption.

Thereafter, defendant ceased contact with the Division. She last visited

Austin in early fall 2018, appeared at a hearing in one matter in December 2018, 
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A-3704-18T3

had her last visit with Evan at that hearing, sporadically participated in services 

offered to her, and never attended additional scheduled psychological or 

bonding evaluations.

In August 2018, the Division filed its initial guardianship complaint as to 

Austin and in December amended it to include Evan. Shortly after, the 

psychologist who examined defendant earlier, conducted bonding evaluations. 

As to Austin he concluded, the child considered his resource parents as his

psychological parents and that, "he would likely [face] both significant and 

enduring harm as there is no other consistent, healthy attachment figure 

available to mitigate harm." The doctor concluded that Evan, because of his 

age, "ha[d] not yet internalized the representation of a consistent parental 

figure." However, the doctor observed that Evan's resource parents were his 

"only consistent caregiver" since leaving the hospital at the time of his birth. 

Further, he found it important that Evan remain together with his brother, as that 

would be beneficial to them both. Defendant, who by that time had not exercised 

any visitation with her children for four months, did not appear for the bonding 

evaluation. 

Defendant also did not appear at the guardianship trial until the judge

rendered her decision, nor were any witnesses offered on her behalf. The only 
10 A-3704-18T3

witnesses were the psychologist and a Division caseworker. The psychologist 

testified consistent with his evaluation of defendant. He further indicated that 

at the time the evaluation was completed, defendant "was not a viable parenting 

option for the children. If she were, [he] would have recommended immediate 

reunification." 

The caseworker testified about the Division's involvement with the family 

and that throughout the process, defendant was uncooperative. While defendant

attended the psychological evaluation, she only minimally went to her children's 

supervised visits and continuously failed to address her mental health issues. 

During trial, defendant's attorney objected to several documents being 

admitted into evidence, which included screening and investigation summaries. 

Defendant's attorney also argued that other documents from family therapeutic 

programs and other substance abuse related facilitates were also inadmissible. 

In response to defendant's arguments, the Division agreed to redact "thirdparty hearsay statements," except for one document. The Division wanted to 

admit the documents "just for the purpose of showing that a call came into the 

Division and the Division then acted upon that call." For the one unredacted 

document, it was the Division's position that the testimony of the reporter was 

admissible because the reporter was a substance abuse worker in a program 
11 A-3704-18T3

selected for defendant by the Division, which made the reporter a Division 

consultant. It argued pursuant to In re Guardianship of Cope, 106 N.J. Super. 

336, 343-44 (App. Div. 1969), N.J. Div. of Child Prot. & Permanency v. N.T., 

445 N.J. Super. 478, 500-02 (App. Div. 2016), and Rule 5:12-4(d), that the 

information was admissible as a business record exception. 

The judge found that the documents were admissible under N.J.R.E. 

803(c)(6) and Rule 5:12-4(d). The judge indicated that these organizations were 

consultants of the Division and did not believe they were independent providers. 

The judge stated that, even though the Division did not create the documents 

itself, "the Division referred [defendant] and the children to these various 

services, so they [were] consultants" and therefore, admissible.3

After considering all the unrefuted evidence, the judge issued her decision 

and entered the guardianship judgment terminating defendant's parental rights 

to Austin and Evan. In the trial judge's written decision, she initially made 

credibility findings, concluding that both the psychologist and the caseworker 

were credible and giving reasons for her findings. The judge then found that the 

3

 Notably, the judge admitted the report of the psychiatrist, who did not testify 

at trial, for the limited purposes of establishing the Division's reasonable efforts 

and for statements made by defendant. 
12 A-3704-18T3

Division established "clearly and convincingly by substantial and credible 

evidence" that defendant's parental rights should be terminated. 

Applying the four prongs of the best interests test, Judge Grimbergen, 

found that defendant's use of marijuana, failure to get mental health and 

substance abuse treatment, being inconsistent in attending visits with her 

children and parenting skills classes, and the need for permanency supported the 

finding that Austin's and Evan's "safety, health, [and] development, [would] be 

endangered if the . . . relationship between them and [defendant] [was] not 

severed." Under prong two, the judge found that defendant's non-compliance 

with the many services the Division attempted to provide to her and her 

unwillingness to change, supported a finding that the Division's proofs satisfied 

that prong. 

Under prong three, the judge found that the Division "offered [defendant] 

psychological and psychiatric evaluations with different professionals, a 

bonding evaluation, individual therapy, parenting classes, visitation, substance 

abuse assessments, and various referrals to follow up with [those]

recommendations," which defendant had failed to "meaningfully" pursue. The 

Division even considered alternative routes that would not require a termination 

of defendant's parental rights. 
13 A-3704-18T3

As to the last prong, the judge concluded that the evidence established that 

severing the relationship between the resource parents and Austin would do 

more harm than good. As to Evan, while the psychologist did not think that the 

child would "suffer significant and enduring harm from severing his relationship 

with his resource parents, there [were] no other options with regards to 

permanency" besides the resource parents. The judge found the resource parents 

to be "the only consistent, accessible and responsive caregivers in [Evan's] life 

since birth, shy of five days." The judge also found the importance of keeping 

Austin and Evan together, as explained by the psychologist, which demonstrated 

the need for the two to stay with their resource family. The judge entered the 

guardianship judgment and this appeal followed. 

Our review of a Family Part judge's decision to terminate parental rights 

is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79

(2007). We defer to the judge's credibility findings and factual determinations 

because the judge has specialized knowledge, as well as a better perspective than 

a reviewing court having observed the witnesses firsthand. N.J. Div. of Youth 

& Family Servs. v. F.M., 211 N.J. 420, 427 (2012); Cesare v. Cesare, 154 N.J. 

394, 412 (1998).
14 A-3704-18T3

In determining whether to terminate a parent's rights to her child, the best 

interests of the child typically call for stability and permanency, which are 

"favored over 'protracted efforts for reunification[.]'" N.J. Div. of Youth & 

Family Servs. v. L.J.D., 428 N.J. Super. 451, 484, 491-92 (App. Div. 2012)

(alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. C.S., 367 

N.J. Super. 76, 111 (App. Div. 2004)). Due to the severity of termination and 

its effect on parents' constitutional rights, however, the proceedings require 

satisfaction of very strict criteria. In re Guardianship of J.N.H., 172 N.J. 440, 

471 (2002). In such cases, "[p]resumptions of parental unfitness may not be 

used in proceedings challenging parental rights and all doubts must be resolved 

against termination." N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J. 

Super. 428, 442 (App. Div. 2013) (quoting N.J. Div. of Youth & Family Servs. 

v. G.L., 191 N.J. 596, 606 (2007)). Parental rights therefore should only be 

terminated "with caution and care, and only in those circumstances in which 

proof of parental unfitness is clear." F.M., 211 N.J. at 447.

Termination is warranted where the Division can meet by clear and 

convincing evidence the four statutory elements set out in N.J.S.A. 30:4C15.1(a). The factors often overlap. M.M., 189 N.J. at 280. 
15 A-3704-18T3

As already noted, we conclude, for the reasons stated in Judge 

Grimbergen's thoughtful written decision, the Division met the clear and 

convincing standard under the best interests test, warranting the termination of 

defendant's parental rights. We find no merit to defendant's arguments to the 

contrary and conclude that that they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). We only add that we do not 

consider defendant's contentions that were not raised before the trial judge about 

her child's initial removals and the alleged pendency of custody actions. See

N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010) 

("Issues not raised below will ordinarily not be considered on appeal unless they 

are jurisdictional in nature or substantially implicate the public interest."). In 

any event, we conclude they have nothing to do with the guardianship action. 

Any challenges should have been raised in the earlier child protective or custody 

actions. 

Defendant's remaining arguments about Judge Grimbergen's admission of 

documents as being in conformity with Rule 5:12-4(d) are equally without merit. 

At the outset, we observe "[a]s a general rule with respect to the exclusion 

or admission of evidence, we afford '[c]onsiderable latitude . . . [to a] trial court 

in determining whether to admit evidence, and that determination will be 
16 A-3704-18T3

reversed only if it constitutes an abuse of discretion.'" N.J. Div. of Child Prot. 

& Permanency v. N.B., 452 N.J. Super. 513, 521 (App. Div. 2017) (second, 

third, and fourth alterations in original) (quoting N.T., 445 N.J. Super. at 492). 

Division reports are admissible as business records under N.J.R.E. 

803(c)(6), if they "meet[] the standards of N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-

4(d), or Cope." N.T., 445 N.J. Super. at 496. 

[T]hose authorities allow the admission of . . . factual 

statements in the report made to the author by [the] 

Division 'staff personnel (or affiliated medical, 

psychiatric, or psychological consultants), [made based 

on] their own first-hand knowledge of the case, at a 

time reasonably contemporaneous with the facts they 

relate, and in the usual course of their duties with' the 

Division.

[Ibid. (fourth alteration in original) (quoting Cope, 106 

N.J. Super. at 353).]

However, 

whether a Division report is offered under N.J.R.E. 

803(c)(6), N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-4(d), or 

Cope, statements in the report by persons other than 

Division staff personnel and affiliated professional 

consultants who are reporting their factual observations 

are inadmissible hearsay unless they qualify under 

another hearsay exception as required by N.J.R.E. 805.

[N.T., 445 N.J. Super. at 497 (emphasis added).]

 
17 A-3704-18T3

Rule 5:12-4(d) specifically states the Division "shall be permitted to 

submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff 

personnel or professional consultants." (Emphasis added). An affiliated 

consultant includes a professional to whom a Division client has been referred

to by the Division for services. See Cope, 106 N.J. Super. at 344. "Conclusions 

drawn from the facts stated therein shall be treated as prima facie evidence, 

subject to rebuttal." R. 5:12-4(d). 

Additionally, N.J.R.E. 803(c)(6) provides that a statement is admissible if 

it is in "writing or other record of acts, . . . made at or near the time of 

observation by a person with actual knowledge or from information supplied by 

such a person, if the . . . record was made in the regular course of business and 

it was the regular practice of that business."

Here, as determined by Judge Grimbergen, the screening summary was 

admissible under Rule 5:12-4(d). As defendant acknowledges, the document is 

a business record of the Division admissible under the Rule. Contrary to 

defendant's contentions, however, the substance abuse counselor's statements

within the document were also admissible because the counselor was acting in 

a capacity of a professional consultant to the Division, reporting to the Division 

information relating to defendant 's participation and treatment. The summary 
18 A-3704-18T3

is a business record under N.J.R.E. 803(c)(6), as the record of the phone call 

falls under the "other record of acts," the statements made and the recording of 

them by the Division were made in the ordinary course of business for a 

counselor, and the statements were made with firsthand knowledge of 

defendant's lack of substance abuse treatment. 

For the same reasons, the other challenged documents, the rule out letter, 

the provider referral forms, the early intervention assessment for Austin, the 

letter from a provider, the provider vendor agreement, and emails between 

providers and the Division qualify under Rule 5:12-4(d). The authors of those 

documents were also Division's consultants, made with firsthand knowledge of 

defendant's continued refusal to get assistance for her substance abuse, her 

parenting skills, and mental health issues. Therefore, the documents were made 

in the ordinary course of business and meet the standards under N.J.R.E. 

803(c)(6) and Rule 5:12-4(d). 

Even if the records were improperly admitted, we conclude it would be 

harmless error. See Rule 2:10-2 ("Any error or omission shall be disregarded 

by the appellate court unless it is of such a nature as to have been clearly capable 

of producing an unjust result."). The Division produced other substantial

evidence supporting the judge's finding that defendant failed to get treatment for 
19 A-3704-18T3

her substance abuse and mental health issues, and the effects that had on her 

ability to parent her children. The most significant other evidence came from 

the psychologist's unrefuted expert testimony. 

To the extent we have not specifically addressed any of defendant's

remaining arguments we find them to be without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.