RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2357-17T4

NEW JERSEY DIVISION OF 

CHILD PROTECTION AND 

PERMANENCY,

Plaintiff-Respondent,

v.

M.D.,

Defendant-Appellant.

______________________________

IN THE MATTER OF THE 

GUARDIANSHIP OF G.D.,

a Minor.

_______________________________

Submitted December 4, 2018 – Decided

Before Judges Sabatino, Haas and Mitterhoff.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Cumberland County, 

Docket No. FG-06-0036-15.

NOT FOR PUBLICATION WITHOUT THE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.

December 12, 2018
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Joseph E. Krakora, Public Defender, attorney for 

appellant (John A. Salois, Designated Counsel, on the 

brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Katrina A. Sansalone, Deputy 

Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minor (Noel C. Devlin, Assistant Deputy 

Public Defender, of counsel and on the brief).

PER CURIAM

Defendant M.D.1appeals from the Family Part's June 19, 2017 judgment 

of guardianship terminating his parental rights to his daughter G.D. (Ginger), 

born in January 2014. Defendant contends that the Division of Child Protection 

and Permanency (Division) failed to prove each prong of N.J.S.A. 30:4C-15.1(a) 

by clear and convincing evidence.2 The Law Guardian supports the termination 

on appeal as it did before the trial court.

Based on our review of the record and applicable law, we are satisfied that 

the evidence in favor of the guardianship petition overwhelmingly supports the 

 

1

 We refer to the adult parties by initials, and to the children by fictitious names, 

to protect their privacy. R. 1:38-3(d)(12).

2

 The Division also sought to terminate the parental rights of Ginger's mother, 

M.B. However, M.B. passed away during the trial.
3

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decision to terminate defendant's parental rights. Accordingly, we affirm 

substantially for the reasons set forth in Judge Harold U. Johnson, Jr.'s thorough 

and thoughtful oral decision rendered on June 19, 2017.

We will not recite in detail the history of the Division's involvement with 

defendant. Instead, we incorporate by reference the factual findings and legal 

conclusions contained in Judge Johnson's decision, and add the following 

comments.

When Ginger was born, she tested positive for Subutex, a drug used to 

treat opioid addiction. M.B.'s family advised the Division that she had obtained 

the drug illegally. Defendant, who had previously been diagnosed with 

schizophrenia and bipolar disorder, refused to cooperate with the Division. The 

parents only visited the baby once while she was in the hospital. M.B. appeared 

to be under the influence, and defendant fell asleep while holding Ginger and 

almost dropped her. On March 1, 2014, the Division performed a "Dodd" 

removal3 of Ginger.4 When she was four months old, the Division placed Ginger 

 

3

 A "Dodd removal" refers to the emergency removal of a child without a court 

order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth 

& Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).

4

 Defendant previously appealed from the Family Part's September 28, 2015 

order terminating the Division's action seeking care and custody of Ginger 
4

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with her maternal aunt and uncle. These resource parents have cared for Ginger 

ever since, she is strongly bonded to them, and they wish to adopt her.5

The Division provided multiple opportunities to defendant to reunify with 

his child, and address his long-standing mental health issues and opioid 

dependency problems. None of these interventions proved successful. The 

Division's expert psychologist, Dr. James Loving, evaluated defendant and 

concluded he was suffering from "serious mental health symptoms" that created 

the risk of "erratic and potentially dangerous behavior." Dr. Loving noted that 

defendant exhibited "severe adjustment problems in terms of anxiety and 

depression," "delusional thinking," "psychotic thinking[,]" and other 

schizophrenic behaviors. 

Dr. Loving opined that defendant's "prognosis for change" was "very 

poor" because he refused to acknowledge his problems, undergo regular 

treatment, or take appropriate medications. As a result, Dr. Loving testified that 

 

pursuant to N.J.S.A. 9:6-8.21 to -8.106 and N.J.S.A. 30:4C-12 (the FN matter), 

and directing the case to proceed as a guardianship action under N.J.S.A. 30:5C15(c) (the FG matter). N.J. Div. of Child Protection and Permanency v. M.D., 

No. A-1920-15 (App. Div. Oct. 27, 2017) (slip op. at 2). We dismissed that 

appeal as moot for the reasons set forth in our opinion. Ibid.

5

 Defendant and M.B. have another child, A.D. (Audrey), born in November 

2015. Audrey now lives with Ginger under the care of the same resource 

parents.
5

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defendant was "not in a position to provide safe, stable, healthy parenting . . . in 

the foreseeable future."

Dr. Loving also diagnosed defendant with "opioid use disorder" based on 

his use of "opiate pills" like Suboxone for his addiction, and "substance use 

disorder" as evidenced by his past use of cocaine and marijuana. While the 

Suboxone defendant used was prescribed by an urgent care doctor in Princeton,

and previously by a primary care doctor in Atlantic City,

6 defendant refused to 

participate in long-term pain management and drug treatment programs offered 

by the Division to address his abuse of opioids. Dr. Loving testified that while 

continued Suboxone use can sometimes be a realistic plan for some patients, 

defendant reported that he planned to wean himself off this medication by taking 

Percocet, one of the drugs he was taking when he became addicted. Therefore, 

Dr. Loving opined that defendant needed "a longer term pain management plan" 

in order to address his substance abuse issues. However, defendant refused to 

participate in such a program. 

 

6

 Neither of these doctors appeared at the trial. The urgent care doctor told the 

Division caseworker that she prescribed Suboxone because defendant told her 

he was "receiving psychiatric care and attending treatment through Narcotics 

Anonymous." However, defendant was not participating in any mental health 

or substance abuse treatment programs.
6

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Defendant did not offer any expert testimony contradicting Dr. Loving's 

detailed opinions on his serious mental health and opioid use problems. 

Defendant also failed to contradict Dr. Loving's expert opinion that he did not 

have a strong bond with Ginger, especially when compared to the resource 

parents, who "she had come to know . . . as her primary, most central parent

figures." As a result, Dr. Loving opined that if defendant's parental rights were 

terminated, there would only be a slight risk of harm to the child. On the other 

hand, there was a high risk that Ginger would suffer serious and enduring 

emotional harm if she was removed from the care of her resource parents.

After the Division rested and M.B. completed her testimony, the judge 

granted defendant's request to represent himself during his defense case. 

Defendant testified on his own behalf, and voiced many of the same paranoid 

ideations Dr. Loving described at trial. Among other things, defendant alleged 

that the police were tracking him through his mobile phone and threatening to 

harm him. He claimed he was involved in a traffic accident with a police car 

that the police "staged" in order to persuade him to drop certain lawsuits. He 

stated he contacted the FBI and the U.S. Justice Department to intervene after 

the police attempted to extort him. At other times, he asserted he lived in "safe 
7

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houses" because he was a confidential informant and, therefore, he could not 

disclose his address to the Division.

As noted above, defendant did not call any expert witness to address Dr. 

Loving's testimony. On the last day of trial, he presented the testimony of a

Division supervisor, who confirmed that defendant had not participated in any 

mental health or substance abuse programs. Defendant also asked Judge 

Johnson to issue a subpoena compelling both resource parents to appear in court 

so he could question them to determine whether they were harming Ginger. The 

judge asked defendant to provide a factual basis for his claim, and a proffer of 

what their testimony would allegedly reveal. However, defendant was unable 

to do so. Therefore, the judge ruled that a subpoena was not appropriate.7 

In his opinion, Judge Johnson reviewed the evidence presented and 

concluded that (1) the Division had proven all four prongs of the best interests 

test by clear and convincing evidence, N.J.S.A. 30:4C-15.1(a); and (2) 

termination of defendant's parental rights was in the child's best interests. In 

 

7

 The judge also rejected defendant's request to call his girlfriend, V.M., as a 

character witness because she had only limited information about defendant 

since he admitted he had only known her for about five months. However, the 

judge stated he would take notice that if she testified, this individual would, "in 

all probability," state that defendant "has been good for the limited times perhaps 

that he has seen her children."
8

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this appeal, our review of the trial judge's decision is limited. We defer to his

expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 413 (1998), 

and we are bound by his factual findings so long as they are supported by 

sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 

N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 

(App. Div. 1993)).

After reviewing the record, we conclude that Judge Johnson's factual 

findings are fully supported by the record and, in light of those facts, his legal 

conclusions are unassailable. We therefore affirm substantially for the reasons 

that the judge expressed in his well-reasoned opinion, and briefly address the 

following matters.

Like Judge Johnson, we reject defendant's argument that the Division 

failed to meet its burden of establishing that Ginger's "safety, health, or 

development has been or will continue to be endangered by the parental 

relationship" under N.J.S.A. 30:4C-15.1(a)(1). Defendant alleges that he has 

never cared for the child, who has lived with her resource parents since May 

2014 and, therefore, he was never in a position to "harm" her. 

However, there is no requirement that the Division pursue an abuse and 

neglect finding as a condition for terminating a defendant's parental rights. N.J. 
9

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Division of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 259 (App. Div. 

2009). Thus, the appropriate test is not whether defendant actually harmed 

Ginger, but "whether the child's safety, health or development will be 

endangered in the future and whether [defendant is] or will be able to eliminate 

the harm." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 

440 (App. Div. 2001). Applying that standard, Dr. Loving's uncontradicted 

expert testimony amply supports the judge's conclusion that defendant's serious 

and untreated mental health problems would place Ginger squarely in harm's 

way if she were placed in defendant's custody, and that this harm could not be 

eliminated for the foreseeable future.

We also reject defendant's contention that the Division failed to establish 

that he was "unwilling or unable to eliminate the harm facing" Ginger under 

N.J.S.A. 30:4C-15.1(a)(2). Defendant asserts that because he was taking 

Suboxone to address his opioid addiction, there was no requirement that he 

participate in any formal substance abuse treatment program and, therefore, he 

should not have been faulted for refusing to do so. However, Dr. Loving opined 

that a long-term treatment plan was necessary in order to enable defendant to 

reduce or eliminate his reliance on Suboxone, especially in view of defendant's 

admission that he intended to wean himself off the drug by taking Percocet, an 
10 A-2357-17T4

even more dangerous and addictive medication. In addition, defendant's 

argument concerning his substance abuse issues ignores the fact that defendant's 

mental health problems, which he has also refused to address, formed the 

primary basis for the judge's finding that defendant could not safely parent 

Ginger now or in the future.

For these same reasons, we are unable to agree with defendant's argument 

that the Division failed to make "reasonable efforts to provide services to help 

[him] correct the circumstances which led to [Ginger's] placement outside the 

home" under N.J.S.A. 30:4C-15.1(a)(3). Contrary to defendant's assertion, 

defendant's participation in a long-term substance abuse and pain management 

program was necessary to help him address his opioid addiction, yet defendant 

declined this service. He also refused to engage in the mental health services 

the Division offered.8

Defendant also argues that the Division did not "consider[] alternatives to 

termination of parental rights" under N.J.S.A. 30:4C-15.1(a)(3) because it did 

not explore kinship legal guardianship (KLG). However, it is clear that KLG 

 

8

 Defendant also argues that the Division failed to provide him with appropriate 

housing. However, he concedes he told the Division on several occasions that 

he could not provide it with his address because of his work as a confidential 

informant and because he did not want the police to know where he lived.
11 A-2357-17T4

was not an appropriate alternative in this case because the resource parents, who 

were also caring for Ginger's sibling, wanted to adopt her. N.J. Div. of Youth 

& Family Servs. v. P.P., 180 N.J. 494, 512-13 (2004) (holding that "when the 

permanency provided by adoption is available, [KLG] cannot be used as a 

defense to termination of parental rights").

Finally, defendant alleges that Judge Johnson improperly denied his 

request to subpoena the resource parents as witnesses, which prevented him 

from demonstrating under N.J.S.A. 30:4C-15.1(a)(4) that the termination of his 

parental rights would "do more harm than good" because the resource parents, 

who intended to adopt Ginger, were not treating her properly. We disagree. 

Our standard of review of a trial court's decisions on evidentiary questions 

is well settled. "When a trial court admits or excludes evidence, its 

determination is 'entitled to deference absent a showing of an abuse of 

discretion, i.e., [that] there has been a clear error of judgment.'" Griffin v. City 

of E. Orange, 225 N.J. 400, 413 (2016) (alteration in original) (quoting State v. 

Brown, 170 N.J. 138, 147 (2001)). "Thus, we will reverse an evidentiary ruling 

only if it 'was so wide [of] the mark that a manifest denial of justice resulted.'" 

Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). 
12 A-2357-17T4

Applying this highly deferential standard of review, we discern no basis 

for disturbing Judge Johnson's decision to deny defendant's request. As 

defendant concedes, "there is no explicit constitutional right to compulsory 

process in a termination of a parental rights case[.]" Indeed, it is well established 

that the Sixth Amendment does not apply to civil matters, like this termination 

of parental rights case. N.J. Div. of Child Prot. & Permanency v. R.L.M., 450 

N.J. Super. 131, 143 (App. Div. 2017) (citing N.J. Div. of Youth & Family 

Servs. v. M.Y.J.P., 360 N.J. Super. 426, 467 (App. Div. 2003)); cf. N.J. Div. of 

Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 634 (App. Div. 2010) 

(noting Sixth Amendment safeguards do not apply to civil abuse or neglect 

case). 

Moreover, Judge Johnson allowed defendant to cross-examine all of the 

witnesses and to call a Division caseworker as his own witness. In denying 

defendant's request to subpoena the resource parents, the judge explained that 

defendant was unable to specify any factual basis for his allegation that the 

resource parents may have harmed the child. Indeed, defendant could not even 

provide a proffer of their intended testimony. In addition, defendant never 

lodged any complaint with the Division about the resource parents, and the 

Division's records and Dr. Loving's expert testimony disclosed nothing 
13 A-2357-17T4

untoward in their treatment of Ginger. Therefore, the judge did not abuse his 

discretion by denying defendant's request to subpoena the resource parents.

In sum, children are entitled to a permanent, safe and secure home. We 

acknowledge "the need for permanency of placements by placing limits on the 

time for a birth parent to correct conditions in anticipation of reuniting with the 

child." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 

(App. Div. 2004). As public policy increasingly focuses on a child's need for 

permanency, "[t]he emphasis has shifted from protracted efforts for 

reunification with a birth parent to an expeditious, permanent placement to 

promote the child's well-being." Ibid. (citing N.J.S.A. 30:4C-11.1). That is 

because "[a] child cannot be held prisoner of the rights of others, even those of 

his or her parents. Children have their own rights, including the right to a 

permanent, safe and stable placement." Ibid.

The question then is "whether the parent can become fit in time to meet 

the needs of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. 

Super. 235, 263 (App. Div. 2005); see also P.P., 180 N.J. at 512 (indicating that 

even if a parent is trying to change, a child cannot wait indefinitely). After 

carefully considering the record, Judge Johnson reasonably determined that 

defendant was unable to parent Ginger, and would not be able to do so for the 
14 A-2357-17T4

foreseeable future. Under those circumstances, we agree with the judge that any 

further delay of permanent placement would not be in the best interests of the 

child.

Affirmed.