DCPP VS. E.B. AND N.B.IN THE MATTER OF THE GUARDIANSHIP OF N.P.B. AND A.B.(FG-02-0040-15, BERGEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2856-15T4

A-2857-15T4

NEW JERSEY DIVISION OF

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

E.B. and N.B.,

Defendants-Appellants.

___________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

N.P.B. and A.B.,

Minors.

______________________________

Submitted September 12, 2017 – Decided September 22, 2017

Before Judges Fisher and Moynihan.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part, Bergen

County, Docket No. FG-02-0040-15.

Joseph E. Krakora, Public Defender, attorney

for appellant E.B. (Dianne Glenn, Designated

Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney

for appellant N.B. (Susan M. Markenstein,

Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General,

attorney for respondent (Andrea M. Silkowitz,

Assistant Attorney General, of counsel and on

the brief).

Joseph E. Krakora, Public Defender, Law

Guardian, attorney for minors (Karen A.

Lodeserto, Designated Counsel, on the brief).

PER CURIAM

Elena is the mother of two boys, Nathan and Alfred, born in

May 2015 and January 2007, respectively; her husband, Noah, is

their father.1 The New Jersey Division of Child Protection and

Permanency (the Division) filed a guardianship complaint naming

both parents as defendants. The trial judge heard testimony over

two days from three witnesses and entered a judgment of

guardianship terminating defendants' parental rights and awarding

guardianship to the Division.

Defendants' separate appeals were consolidated. Each

defendant claims that the judge's conclusions were not supported

by clear and convincing evidence. Noah also contends: the judge

did not consider alternatives to termination "because other family

members were willing and available to supervise visitation; he had

recovered by the time of trial"; and the court ceded its duty to

1

We utilize the trial court's pseudonyms for the parties and the

children, to protect their privacy, and for the reader's

convenience.

2 A-2856-15T4

determine the best interests of the children to the Division's

expert who testified about the results of his evaluations of the

parents and children. We find it necessary to remand this matter

to the trial court with the direction that it supplement its

findings of fact and conclusions of law, after considering evidence

relevant to the bond between the boys and their parents and

proffered evidence that the boys would not be allowed contact with

their parents if termination was granted.

The judge's recitation of the applicable law evidenced that

he understood the import of his decision to terminate the

defendants' fundamental and highly protected parental rights.

Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1394-

95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O.,

161 N.J. 337, 346-47 (1999). The Legislature has declared, as a

matter of public policy, "[t]hat the preservation and

strengthening of family life is a matter of public concern as

being in the interests of the general welfare . . . ." N.J.S.A.

30:4C-1(a).

Parental rights, however, are not inviolable. N.J. Div. of

Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). "The

balance between parental rights and the State's interest in the

welfare of children is achieved through the best interests of the

child standard." K.H.O., supra, 161 N.J. at 347. The Division

3 A-2856-15T4

must prove the following four factors by clear and convincing

evidence before parental rights may be terminated:

(1) The child’s safety, health, or development

has been or will continue to be endangered by

the parental relationship;

(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. Such

harm may include evidence that separating the

child from his resource family parents would

cause serious and enduring emotional or

psychological harm to the child;

(3) The division 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.

[N.J.S.A. 30:4C-15.1(a); see also A.W., supra,

103 N.J. at 604-11.]

The standards "are not discrete and separate; they relate to

and overlap with one another to provide a comprehensive standard

that identifies a child's best interests." K.H.O., supra, 161

N.J. at 348.

The trial judge heeded the mandate of the Court in conducting

a fact sensitive analysis of the first three factors, specific to

each defendant. Ibid.

4 A-2856-15T4

As to the first statutory prong, the judge found both parents'

"extensive history of substance abuse" related to their criminal

involvement, including one incident when Noah and Elena were

arrested after purchasing drugs while the boys were present, and

for possessing stolen property.2 That event prompted the Division

to remove Nathan and Alfred. Both parents, in a subsequent court

proceeding, stipulated that their actions resulted in the abuse

or neglect of the children.

The judge considered subsequent arrests of both parents for

other crimes, and their ensuing imprisonment, as well as Noah's

enrollment in Drug Court just prior the court's decision in this

matter. The judge found, from Elena's statement to Dr. Miller,3

that the impetus for the parents' criminal behavior was their need

for money to support Noah's drug habit. Other findings supported

the judge's conclusion that the first prong was proven: both

parents' failure to maintain sobriety; their positive drug tests;

2

This incident was not sanctioned by any law enforcement agency

as part of the parents' periodic role as confidential informants

who performed purchases of controlled dangerous substances under

the direction of police. We, therefore, find Noah's argument that

the State was "complicit and a participant in the harm brought to

the children" by using Noah "as a quasi-deputized operative and

informant" is without merit. R. 2:11-3(e)(1)(E).

3

Dr. Robert James Miller II, Ph.D., found by the court to be an

"expert in psychology," conducted psychological evaluations of all

four members of the family, and bonding evaluations between each

parent and the boys. He was called by the Division to testify.

5 A-2856-15T4

Elena's admission to Dr. Miller of the possibility that the boys

witnessed intravenous drug use; and the parents' inability to

secure stable housing.

The evidence found by the judge clearly and convincingly

established the first prong of the statutory requirements for

termination. Although there may have been a willingness to refrain

from endangering the boys, the judge found neither parent had the

ability to do so.

The judge's conclusions relevant to the first prong

dovetailed with his findings supporting the second prong, a common

occurrence resulting from the overlap of these two factors. N.J.

Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88

(App. Div. 2006), certif. denied, 190 N.J. 257 (2007).

The judge detailed Noah's continued substance abuse, failure

to complete substance abuse treatment programs, missed or refused

drug tests, drug-related arrest, theft from his employer and

concomitant arrest and eviction from his employer's residence, and

failure to produce proof of his attendance at the AA/NA program

he said he was attending in lieu of a treatment program. The

judge observed Noah had "years to start the process" to reunify

with his children, "but failed to do so." Noting that Noah's

"early involvement with the Division was marked with disinterest

and noncompliance," the judge found Noah's more recent attempts

6 A-2856-15T4

to address his problems was "a case where too little has been far

too late."

Likewise, the judge found Elena's long history with the

Division included missed drug tests, professions of sobriety

notwithstanding positive drug screens, arrests and incarceration

during which she did not participate in services provided by the

Division or visitation with the boys, and failure to participate

in or complete treatment programs. The judge concluded from the

evidence presented that Elena's "participation with the Division

was marked with non-compliance, no progress and incarceration."

The boys' progress under the care of their paternal uncle and

his wife, with whom they had been residing since their removal in

August 2013, was a factor considered by the judge, and which

supported Dr. Miller's opinion that, in the judge's words,

"removing the children from the resource family would hinder the

children's noticeable improvement and adversely affect their

welfare." The judge balanced that progress and the parents'

"continued issues"; we agree with his conclusion that there was

clear and convincing proof the second prong was met.

The court, in considering evidence related to the third prong,

noted both parents refused or failed to comply with the plethora

of court-ordered services offered to both parents by the Division.

He also reviewed the Division's consideration of familial options,

7 A-2856-15T4

all of which were ruled out. The court found the best option was

the one originally found by the Division: the boys' uncle who,

with his wife, expressed his willingness to adopt the boys. We

agree that there was clear and convincing evidence related to the

third prong.

In considering the fourth prong, the judge acknowledged that

it "serves as the final fail-safe against termination even where

the remaining standards have been met." N.J. Div. of Youth &

Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The judge weighed

Noah's testimony – Elena did not take the stand – but concluded

that nothing presented by him or on behalf of Elena "can surmount

the overwhelming evidence that the best interest of the children

demand termination." That "overwhelming evidence" was detailed

by the judge and included the parents' failure to comply with the

early recommendations made by Dr. Miller and the services provided

by the Division that could have led to reunification. He also

took note of the bond between the boys and their uncle and his

wife as reported by Dr. Miller after he observed interactions

among them. The court also considered the doctor's evaluations

of Noah and Elena.

Contrary to Noah's argument that the judge "abdicated" his

duty to make a best interest determination regarding the children,

and "cut[] and paste[d]" Dr. Miller's opinions, the court evaluated

8 A-2856-15T4

the testimony of all three witnesses and made specific findings

regarding each of their testimony. He recognized the many

recommendations and observations made by Dr. Miller, but it is

clear the court made its own findings from all the evidence,

including the uncontroverted expert opinions rendered by the

doctor.

The determination of "whether, after considering and

balancing the two relationships, the child will suffer a greater

harm from the termination of ties with her natural parents than

from the permanent disruption of her relationship with her foster

[or resource] parents," K.H.O., supra, 161 N.J. at 355, "is an

expert judgment." In re Guardianship of J.N.H., 172 N.J. 440, 478

(2002). Bonding evaluations play an important role in this regard.

In re Guardianship of J.C., 129 N.J. 1, 19 (1992). Psychologists

and psychiatrists who perform the evaluations play a "critical

role in reaching an ultimate decision in termination cases . . .

." Id. at 22.

The parties stipulated Dr. Miller was qualified as an expert

in psychology and bonding. The judge particularly noted, "Dr.

Miller has appeared many times in [his] courtroom and qualified

in every instance as an expert." The judge found the doctor's

"opinions were not disproved" and that his "conclusions were

9 A-2856-15T4

reasonable and logical." He utilized the evidence presented by

the doctor; he did not simply adopt it.

Dr. Miller's testimony raised interrelated issues we find

were important to consider in determining whether termination

would do more harm than good. He found the boys were bonded to

each of their parents. He opined the boys would have "a

significant emotional reaction" if they perceived they would never

see their parents again if termination was ordered, and that it

would "probably not be good" if they were barred forever from

having contact with their parents. Dr. Miller said it was

improbable that the resource family – the boys' uncle and aunt –

would prevent any contact between the boys and their natural

parents. Contrary evidence, however, was presented. A "contact

sheet"4 prepared by Division caseworker, Ashley Glover, who

testified at trial, related the boys' uncle's statement to her

that he would "not allow the parents in [the boys'] lives" if he

adopted them. He would allow the boys to have a relationship with

their parents only after they turned eighteen-years-old.

4

The contact sheet was part of P-118, admitted in evidence on

December 2, 2015 (defendants' joint appendix incorrectly indicates

it was admitted on November 9, 2015). The record is not clear if

the judge considered the contact sheet as evidence or if he found

reason to exclude it; he told the attorneys he would disregard

"objectionable hearsay" when he admitted a large number of contact

sheets.

10 A-2856-15T4

We find it necessary to remand this case for the judge to

consider this and any other related evidence in the existing

record, found pertinent and admissible, in determining whether

termination would do more harm than good. We direct that the

judge supplement his findings and conclusions, including any

ruling on the admissibility of evidence. We note that the contact

sheets contain embedded hearsay, including the uncle's statement

to the caseworker about his intention to prevent the boys from

seeing their natural parents.5 We leave it to the trial judge to

determine whether or to what extent he may require additional

testimony, evidence or argument to determine the admissibility or

weight of such evidence; of course, any ruling and the basis

therefor should be set forth in the record. See Konop v. Rosen,

425 N.J. Super. 391, 402 (App. Div. 2012) (holding the basis for

admission of each hearsay-within-hearsay statement must be

separately considered).

The court's amplified decision shall be completed within

thirty days. We retain jurisdiction.

5

New Jersey Rule of Evidence 805 provides: "A statement within

the scope of an exception to Rule 802 shall not be inadmissible

on the ground that it includes a statement made by another

declarant which is offered to prove the truth of its contents if

the included statement itself meets the requirements of an

exception to Rule 802."

11 A-2856-15T4