DCPP VS. Y.M. AND J.S., IN THE MATTER OF THE GUARDIANSHIP OF L.S. AND Z.H. (FG-06-0020-17, CUMBERLAND COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4822-16T3

NEW JERSEY DIVISION

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

Y.M.,

Defendant-Appellant,

and

J.S.,

Defendant.

_________________________

IN THE MATTER OF THE

GUARDIANSHIP OF L.S.

and Z.H.,

Minors.

_________________________

Argued April 30, 2019 – Decided May 16, 2019

Before Judges Yannotti and Natali.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Cumberland County,

Docket No. FG-06-0020-17.

Bruce P. Lee, Designated Counsel, argued the cause for

appellant (Joseph E. Krakora, Public Defender,

attorney; Bruce P. Lee, on the briefs).

Katrina A. Sansalone, Deputy Attorney General, argued

the cause for respondent (Gurbir S. Grewal, Attorney

General, attorney; Melissa Dutton Schaffer, Assistant

Attorney General, of counsel; Katrina A. Sansalone, on

the brief).

Meredith A. Pollock, Deputy Public Defender, argued

the cause for minors (Joseph E. Krakora, Public

Defender, Law Guardian, attorney; Meredith A.

Pollock, of counsel and on the brief; Sean P. Lardner,

Designated Counsel, on the brief).

PER CURIAM

Y.M. (Yolanda) appeals from a June 26, 2017 Family Part order

terminating her parental rights to her two children, L.S. (Lynn), and Z.H.

(Zachary).1 Lynn and Zachary's biological father is J.S. (James).2 Having

1

We use fictitious names for Y.M., L.S., Z.H., H.C., J.C., J.S., and D.C., to

protect their privacy and for ease of reference.

2

James completed an identified surrender of his paternal rights to Lynn and

Zachary on October 24, 2016, and was dismissed from the litigation. He has not

participated in this appeal.

A-4822-16T3

2

considered her arguments in light of the record and applicable legal principles,

we affirm.

I.

In addition to Lynn and Zachary, Yolanda is the biological mother of two

other children, H.C. (Henry) and J.C. (Jennifer). Henry's biological father is

J.J., and D.C. (David) is Jennifer's father.

In June 2014, the Division of Child Protection and Permanency (Division)

received a referral from Zachary's school regarding suspected physical abuse by

David against then-three-year-old Zachary. The school reported that Zachary

had a bruise on his face which Zachary attributed to a fall caused by David

striking him.

The school also alleged that Zachary had bruises on both cheeks the week

prior. When asked about those bruises, Zachary initially explained that he ran

into a doorknob, but then said he fell on the floor. When the school worker

asked if someone grabbed him, Zachary responded "yeah, [David] grabbed me."

The school further reported that Zachary had been emotional and crying,

and that Yolanda and the children had recently moved in with David. Zachary

also stated that he once saw David hit Yolanda. After an investigation, the

A-4822-16T3

3

Division concluded that Zachary was harmed, but it did not substantiate the

physical abuse allegations.

In August 2014, Yolanda obtained a temporary restraining order against

David after a domestic violence incident for which she was treated at the

hospital. She later dropped this restraining order and moved back in with David

that same month.

Three months later, on September 23, 2014, the Division received another

referral from Henry's daycare, after a daycare staff member observed bruises on

Henry's side and ribs, as well as bruises and scratches on his face and back.

Yolanda explained that Henry acquired the scratches because he was starting to

crawl and the bruises were birth marks. The Division reviewed Henry's birth

records and confirmed that some of the marks on Henry's skin were birth marks.

The Division consequently found there was no physical abuse or risk of harm to

Henry.

On October 8, 2014, Henry's daycare again contacted the Division to

report a bruise on his forehead, which Yolanda explained was caused when

Henry hit his head while in his "bouncy swing." The daycare workers also

observed more bruises on Henry's right and left upper rib cage.

A-4822-16T3

4

The Division investigator took photographs of Henry's bruises, and a

physician, Dr. Marita Lind, reviewed them. Dr. Lind stated that Henry needed

to be seen at Cooper University Hospital immediately for further evaluation.

She also observed that Henry looked small for his age.

A Division caseworker, Perrin Rutter, asked Yolanda to meet her at

Henry's school. When Yolanda arrived, she "appeared to be very upset and

crying" and stated she had not seen the bruises on Henry's ribs, even though she

had given him a bath the night before and dressed him that morning. The only

explanation that Yolanda offered was that she had recently played "airplane"

with Henry, by holding him up by his rib cage and spinning him around.

Rutter directed Yolanda to take Henry to a doctor at Cooper Hospital that

day. After Yolanda initially declined, another Division caseworker advised that

if Yolanda refused to take Henry to Cooper Hospital, the Division would take

custody of the children.

While Yolanda prepared to take Henry to the hospital, Zachary told Rutter

that he was scared of "daddy" and that his "dad" did not live with him. Zachary

said he was scared of his "dad" because he "[hit] him on the buttocks with his

hand," and hit Zachary's brother and sister. Zachary stated that his "dad" hit

Henry on the head with his hand because Henry cries, and that his "dad" "yells

A-4822-16T3

5

a lot," but that he never saw his "dad" hit Henry any other time. Zachary also

stated he did not know how Henry's ribs were bruised. When Rutter asked about

Yolanda, Zachary commented that Yolanda did not yell at Henry, never dropped

him, and was "always playing and laughing with" Henry. Both Zachary and

Lynn denied that they, or their siblings, were physically disciplined by Yolanda.

Henry underwent testing at Cooper Hospital, which included x-rays and

blood tests. He was also examined by Dr. Kathryn McCann. Yolanda repeated

to Dr. McCann her claim that Henry bruised his head when he hit it on a toy that

was hanging from his "bouncy swing." Regarding the bruises on Henry's ribs,

Yolanda told McCann the same thing she told the Division; that she might have

caused those bruises playing airplane.

Henry's x-rays showed that he had twenty rib fractures at different stages

of healing, a fracture of his right arm consistent with pulling or twisting, a jaw

fracture, and a partially collapsed lung. Cooper Hospital physicians determined

that Henry had suffered non-accidental trauma and also diagnosed him with

numerous conditions, including failure to thrive and developmental delays.

Henry weight was below the fifth percentile, but he began gaining weight after

he was admitted to the hospital.

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6

The day following the referral, on October 9, 2014, Yolanda met with the

Vineland Police Department and told them Henry broke his bones when he fell

off the bed. When the officer told Yolanda that falling off the bed would not

cause all of the rib fractures, she responded that she did not know how else the

injuries would have occurred.

Yolanda admitted to the officers that David "smack[ed]" her and punched

her in the mouth. She also said that David hit Zachary and Lynn for jumping on

the bed, and that he hit the back of their legs with his leather belt several times.

Yolanda "smacked [David] in the back when he hit" the children, but he just hit

her back. When asked if she thought David could have hurt Henry, she cried

and answered yes, asking "[h]ow could I have been so blind, my poor baby?"

With respect to the bruises on Henry's ribs, Yolanda told the police that

on October 7, 2014, David gave Henry a bath and dressed him for bed, which

David did regularly. The following morning, Yolanda changed Henry's diaper

but did not see any bruises because she did not remove his shirt.

The Vineland police and Rutter also interviewed Lynn. Lynn told them

that David broke Henry's ribs, and that David grabbed Henry and hit him because

he would not drink his bottle. Lynn indicated Yolanda was present and told

A-4822-16T3

7

David to stop. Lynn said that David hit her and Zachary in the face with a belt

and their backs with a broomstick.

Lynn also said she witnessed Henry hit his head on the bouncy swing.

Lynn also stated that Zachary had laid down on the floor and David hit him with

a broomstick on his back until he bled. She added that Yolanda was downstairs

when David hit them and that Yolanda would hit David in the back when she

witnessed David striking them. Lynn also said David hit Yolanda when they

were at his house.

The Division executed a Dodd removal 3 on October 10, 2014, and

removed Zachary, Lynn, and Henry from Yolanda's care. It placed Lynn and

Zachary with their paternal relatives, A.P. and J.P. Henry was also placed with

them upon his release from the hospital on October 13, 2014.

On October 15, 2014, the court held an order to show cause hearing with

respect to a Title Nine complaint, N.J.S.A. 9:6-8.33, filed by the Division

against Yolanda and David. At the conclusion of the hearing, the court granted

the Division custody, care, and supervision of Lynn, Zachary, and Henry, and

granted Yolanda supervised visitation.

3

A "Dodd removal" refers to the emergency removal of a child from a ho me

without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act,

N.J.S.A. 9:6-8.21 to -8.82.

A-4822-16T3

8

On October 17, 2014, the Cumberland County Prosecutor's Office

interviewed Yolanda. A detective asked Yolanda about Henry's injuries, and

she told him that in June 2014, she was in a rush and placed Henry on the bed.

She claimed he rolled off of the bed and landed on his stomach, and that his face

and cheeks were red. Yolanda claimed she fed him that night and he seemed

fine, but his face was swollen when he woke up the next morning. Yolanda

reported that she called her "friend" David for advice and he told her to take

Henry to the hospital, but she did not do so because she was afraid the hospital

would call the Division.

On October 21, 2014, the Division interviewed David. The Division's

report indicated David was "irate" because the Division had removed the

children from his custody. David said that if someone had asked him how Henry

was injured, then he could have told them. A Division caseworker requested

David to share that information, but David answered that his attorney told him

not to talk about the incident.

On October 24, 2014, Dr. Lind evaluated Henry for physical abuse. In a

report dated April 13, 2015, she stated Henry's injuries indicated he experienced

"repeated traumatic injury." Dr. Lind also evaluated Zachary and Lynn on that

date and created reports based on her examinations. Although Dr. Lind

A-4822-16T3

9

evaluated Zachary and Lynn separately, both children repeated statements that

were similar to what they had told the Vineland police. When Dr. Lind asked

each child if they knew why Henry was in the hospital and why they were

speaking to her, Lynn and Zachary responded it was because David had hurt

Henry. Zachary and Lynn also told Dr. Lind that David hit Zachary with a

broomstick, and Zachary said he was afraid of David.

Lynn said she saw David hit Henry, and that David had told her to go back

upstairs and "smacked [her] on [her] arm with the belt on the way." She

indicated that Yolanda was present when this occurred and that David "wouldn't

let Mommy go home." In the past, she also saw David throw Henry on the floor

twice, and said that David had kicked Zachary's leg, hit his face, kicked her

shoulder, and broke Yolanda's leg, which made her go to the hospital. Lynn said

she did not witness David break Yolanda's leg, but that she heard it from upstairs

and hid in the closet with Zachary. Lynn explained that Yolanda would "hide

the baby" with Lynn and that Lynn heard a "smacking sound." Zachary similarly

stated that Lynn would hide him and Henry from David in a closet and tell him

to be quiet.

Dr. Lind recommended Lynn and Zachary also see a child mental health

professional to determine the impact of these events and develop a treatment

A-4822-16T3

10

plan. On November 5, 2014, the trial court continued custody with the Division

and ordered that Lynn and Zachary receive trauma therapy. It also temporarily

suspended Yolanda's visitation with her children.

On January 21, 2015, Yolanda was charged with one count of

fourth-degree child abuse, cruelty, and neglect, contrary to N.J.S.A. 9:6-3. She

plead guilty on or about June 25, 2015, was sentenced to one year probation,

and ordered to comply with Division services.

At a compliance review hearing on August 26, 2015, the court reinstated

Yolanda's weekly supervised visits with her children and directed her to undergo

domestic violence counseling and parenting skills training. Both Yolanda and

David told a Division caseworker that they were still in a relationship but did

not indicate whether they were living together.

Starting on September 2, 2015, the Division facilitated supervised visits

between Yolanda, Lynn, Zachary, and Henry. The Division also retained

Community Treatment Services on October 13, 2015, who worked with Yolanda

and her children for approximately eleven months to facilitate reunification.

Yolanda also met with a Services Empowering Rights of Women (SERV)

liaison on September 8, 2015, and attended group workshops for domestic

violence. On July 5, 2016, Yolanda attended a domestic violence program

A-4822-16T3

11

through SERV and participated in six out of eight workshops. She completed a

parenting skills program approximately one year later on September 27, 2016.

The Division referred Yolanda to Dr. Larry Seidman for a psychological

evaluation, which occurred on September 17, 2015. Although Yolanda

exhibited signs of anxiety and depression, Dr. Seidman did not recommend a

psychiatric evaluation because of her "laissez-faire" attitude and because she

would "likely be fully resistant" to such intervention. Dr. Seidman

recommended that Yolanda receive therapy to "aide her in understanding that

she [was] prone to choosing poor mates as companions and surrogate parents for

her children, [and] that continued domestic violence [was] likely to cause [her]

and her children even further distress or criminal penalty," and have serious

negative effects on her children's welfare. He also recommended that Yolanda

complete her domestic violence classes and participate in a parent education

class. Dr. Seidman did not recommend that Yolanda have custody of the

children at that time.

In the fall of 2015, police responded to domestic violence incidents

involving Yolanda and David. According to an October 2015 police report,

Yolanda tried to scratch David and held a small knife during an argument with

him. David claimed he did not feel threatened, and declined the opportunity to

A-4822-16T3

12

file a restraining order against Yolanda. In November 2015, police responded

to a burglary at Yolanda's residence. She told officers she believed David tried

to break into her home, but that she hid in the shower. She also told officers

that they had not dated for about six months, but spent time together every day.

The Division also referred Yolanda to Dr. Scott Schafer for mental health

counseling. In a May 2, 2016 report, Dr. Schafer sought to help her "recognize

unhealthy, dangerous relationships; [i]dentify stressors, anxiety, depression[;]

[a]ddress [her] problems as a child and parent;" and to address prior and current

domestic violence, and child abuse or neglect. Yolanda attended fourteen

sessions between March 2016 and January 2017, missed ten sessions within that

same timeframe, and did not complete treatment.

On February 16, 2016, Judge Harold U. Johnson, Jr., held a fact-finding

hearing with respect to the Division's Title Nine complaint against Yolanda and

David. During the fact-finding proceeding, the court permitted the Division,

over counsel's objection, to call Yolanda as a witness. Yolanda's counsel stated

the Division should be precluded from calling Yolanda because it would "make

her a witness against herself in the trial that the Division[] [was] prosecuting

against her." The court overruled the objection and explained that because the

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13

matter was a civil proceeding, the Division "ha[d] a right to call witnesses that

[it] sees fit."

On May 10, 2016, the court issued an order finding that the Division

proved by a preponderance of the evidence that Yolanda and David abused or

neglected Henry, Lynn, and Zachary. Specifically, it concluded that Yolanda

"allowed injury to [Henry] under N.J.S.A. 9:6-8.21(c)(1) and 8.21(c)(4)," and

she "created substantial risk of injury to [Lynn] and [Zachary] under N.J.S.A.

9:6-8.21(c)(4)."

On May 22, 2016, Yolanda reported another domestic violence incident

involving David. Yolanda claimed David kicked down the door to her

apartment. A responding police officer noted damage to her front door and

doorframe.

Dr. Seidman reevaluated Yolanda in August 2016. He reported that

Yolanda would benefit from psychotropic, psychiatric treatment, and

psychotherapy, but she "remain[ed] resistant to those interventions." Dr.

Seidman further recommended that the court terminate Yolanda's parental rights

and that the children be placed for adoption.

On August 2, 2016, the court accepted the Division's permanency plan for

the termination of parental rights followed by adoption. Approximately one

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14

month later, on September 13, 2016, the Division filed its guardianship

complaint.

In May and June 2017, the court conducted a three-day trial on the

Division's guardianship complaint.4 At trial, the Division relied on documentary

evidence, and the testimony of Daniel Melendez, who was a Division adoption

specialist assigned to the case in October 2016 and the Division's documen t

custodian. The Division also relied on the testimony of Dr. Alan Lee, who was

qualified as an expert in clinical and forensic psychology, and conducted

psychological and bonding evaluations of Yolanda, Lynn, Zachary, and the

resource parents. Neither Yolanda nor the Law Guardian called any witness or

offered any evidence.

On June 26, 2017, Judge Johnson issued a judgment and comprehensive

and thorough oral opinion in which he found that the Division proved by clear

and convincing evidence all four prongs of N.J.S.A. 30:4C-15.1(a). Judge

Johnson also explained that his determinations from the Title Nine fact-finding

proceeding "should become a part of" his Title Thirty decision. The court's

4

Henry is not included in this litigation. After a paternity test confirmed J.J. is

Henry's biological father, the court dismissed Henry from the Title Thirty

matter, and reopened the Title Nine litigation to address his care and custody.

A-4822-16T3

15

judgment terminated Yolanda's parental rights to Lynn and Zachary, and

awarded the Division guardianship of the children. Yolanda's appeal followed.

On appeal, Yolanda argues that the Division failed to prove prongs one,

three, and four of the "best interests of the child test" under N.J.S.A. 30:4C-

15.1(a) by clear and convincing evidence. Yolanda also claims the court

violated her Fifth Amendment rights against self-incrimination by forcing her to

testify at her related Title Nine fact-finding proceeding. Finally, she claims it

was improper for the same judge who presided over her Title Nine action to

decide the instant guardianship proceeding. We disagree with each of Yolanda's

arguments, and affirm substantially for the reasons set forth by Judge Johnson

in his well-reasoned and thoughtful oral opinion.

II.

As to Yolanda's first point, because all of the trial judge's findings were

supported by evidence the judge found to be clear, convincing, and credible,

they are entitled to our deference. N.J. Div. of Youth & Family Servs. v. F.M.,

211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Parents have a constitutionally protected right to the care, custody and

control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re

Guardianship of K.H.O., 161 N.J. 337, 346 (1999). The right to have a parental

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16

relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v.

R.G., 217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W.,

103 N.J. 591, 599 (1986). At times, a parent's interest must yield to the State's

obligation to protect children from harm. N.J. Div. of Youth & Family Servs.

v. G.M., 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10

(1992).

To effectuate these concerns, the Legislature codified the test for

determining when a parent's rights must be terminated in a child's best interests.

N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing

evidence the following four prongs:

(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 [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

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17

(4) Termination of parental rights will not do more

harm than good.

See also A.W., 103 N.J. at 604-11.

A. Prong One

Yolanda raises four arguments with respect to the court's prong one

findings. She first argues that the Division failed to show by clear and

convincing evidence that she harmed her children or will continue to harm them.

Second, she contends the court failed to consider that she was a victim of

domestic violence and lacked control and power over her relationship with

David. Third, Yolanda claims the trial court erred in finding that she knew of

Henry's injuries, and knew that her relationship with David would lead to harm

to the children. Finally, Yolanda claims that the Division failed to present

competent evidence that Lynn and Zachary were actually harmed as a result of

David's abuse of Henry or by his domestic violence toward Yolanda. We

disagree with all of these arguments.

As to the first prong, the court determined that Yolanda placed the

children "in danger and continue[d] to place the children in danger in a way,

which would place their health, safety, and welfare at risk." Further, the court

stated it was not convinced that Yolanda ended her relationship with David, "as

evidenced by her contact with him as recently" as May 2017 and April 2017.

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18

Therefore, the court concluded, if Lynn and Zachary remained with Yolanda,

then the children would continue to have contact with David. The court also

found that Yolanda knew the injuries were occurring and "did nothing about it."

All of these findings were supported by substantial credible evidence in the

record.

Initially, we address Yolanda's argument that she was a domestic violence

victim and, therefore, lacked power over her relationship with David. While we

acknowledge that Yolanda was a victim of domestic violence, and are

sympathetic to her situation, we cannot ignore that her relationship with David

harmed the children, and placed them at serious risk of harm. As we have

previously stated, "[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." N.J. Div. of Youth & Family Servs.

v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004). Further, in a guardianship

matter, our Supreme Court has observed that "a mother's relationship with her

child's potentially dangerous father may be an appropriate consideration if that

relationship poses a clear threat to the child. A parent has the obligation to

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19

protect a child from harms that can be inflicted by another parent." Division of

Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (citation omitted).5

Here, the record supports the trial court's decision that Lynn and Zachary's

safety, health, and development will continue to be endangered by their

relationship with Yolanda. Melendez testified as to the Division's interactions

with Yolanda, Lynn, and Zachary, and Yolanda's and the children's participation

in recommended services. This testimony, along with that of Dr. Lee, and Dr.

Schafer's unrebutted reports, establish that Yolanda lacked insight as to the

gravity of the situation, the seriousness of Henry's injuries, and her role in

creating those risks to the children. Again, while we fully recognize and

sympathize with Yolanda's situation, the record clearly and convincingly

supports the trial court's conclusion that she harmed the children, and failed to

eliminate the risk of harm to the children by continuing her relationship with

David.

5

Defendant's reliance on N.J. Div. of Youth & Family Servs. v. F. H., 389 N.J.

Super. 576 (App. Div. 2007) is misplaced. Unlike the child in F.H., the evidence

clearly and convincingly demonstrated a consistent pattern of actual abuse by

David with Yolanda's acquiescence, coupled with a history of domestic violence

and continued denial. Thus, reunification with Yolanda would expose Zachary

and Lynn "to a high probability of being abused or neglected." Id. at 586. This

harm satisfies F.H. and N.J.S.A. 30:4C-15.1(a)(1).

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20

We also reject Yolanda's claim that the court committed error when it

concluded she should have been aware of Henry's injuries. Yolanda contends

that since Henry's other daily caretakers, including a babysitter, did not notice

or appreciate the scope of Henry's injuries, it is therefore reasonable to conclude

that she was similarly unaware of Henry's injuries, and that David's abuse was

the cause. As the Law Guardian, correctly argues, unlike Yolanda, the daycare

staff and other temporary caretakers did not observe David abusing the children,

and therefore, were not in the same position as Yolanda to observe and prevent

those injuries.

Further, contrary to Yolanda's contention, the court's finding that Lynn

and Zachary were harmed, or were placed at a risk of future harm, by witnessing

David's abusive conduct, particularly toward Henry, was supported by

competent evidence. As to the actual harm to Lynn and Zachary, at trial, Dr.

Lee testified that "domestic violence issues in the home certainly raise concerns

as to a child being exposed to physical risks . . . but also emotional risks . . .

[b]ecause children who are exposed to domestic violence situations often have

a remarkable difficulty trying to . . . make sense . . . psychological[ly] . . . [of]

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21

the conflict that they witness between adults." Dr. Lee's opinion was supported

by the medical reports admitted into evidence. 6

For example, based on her examination, Dr. Lind recommended that

Zachary see "a child mental health professional who can . . . provide an

appropriate treatment plan for his experience of physical abuse and witness to

domestic violence." Similarly, Dr. Lind stated Lynn should commence

treatment with a therapist who can provide "trauma focused [cognitive behavior

therapy] for her experience of physical abuse, witnessing physical abuse of her

siblings[,] and witnessing domestic violence." In her report, Dr. McLaughlin

indicated that Zachary and Lynn were in treatment with her and suffer from

"complex trauma and post-traumatic stress as well as depressive symptoms" and

noted both children were subjected to "multiple trauma at their home at the

6

In light of the testimony from Dr. Lee, and Dr. Lind's and Dr. Maryann

McLaughlin's reports, we find defendant's reliance on N.J. Div. of Youth and

Family Servs. v. S.S., 372 N.J. Super. 13, 25 (App. Div. 2004), and N.J. Div. of

Youth and Family Servs. v. I.H.C., 415 N.J. Super. 551, 583-84 (App. Div.

2010) misplaced. In S.S., we concluded that a court cannot "take judicial notice

of the fact that domestic violence begets emotional distress or other psychic

injury in child witnesses." 372 N.J. Super. at 25. Here, rather than taking

judicial notice of the harm caused to Lynn and Zachary by witnessing domestic

violence to their siblings, Dr. Lee's unrebutted testimony, along with Dr. Lind's

and Dr. McLaughlin's reports, provided sufficient, competent evidence for the

court to conclude the children were harmed and the Division clearly and

convincingly satisfied prong one.

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22

hands of their mother's significant other." She indicated that children like Lynn

and Zachary who suffer from trauma from individuals close to them need more

therapy than those who suffer from one incident. She noted that both children

were cooperative but the therapy was moving slowly and could take up to

thirty-six months.7

Finally, with respect to the risk that the children's health and safety will

be endangered by their relationship with Yolanda, we note that evidence of a

sibling's abuse is relevant to show harm to a child in a Title Thirty termination

of parental rights proceeding. See N.J. Div. of Youth & Family Servs. v. T.U.B.,

7

Yolanda did not object to the admission of Dr. Lind's or Dr. McLaughlin's

records at trial (or any of the Division's documentary evidence), nor has she

claimed on appeal the admission of those records, or the court's reliance on them,

was in error, or constitutes a fundamental miscarriage of justice. N.J. Div. of

Youth & Family Servs. v. M.C. III, 201 N.J. 328, 341 (2010). Normally, the

admissibility of Division reports requires satisfaction of the prerequisites for

admission as a business record under N.J.R.E. 803(c)(6). M.C. III, 201 N.J. at

346-47. In M.C. III, however, the Court held that where the Division had not

satisfied the N.J.R.E. 803(c)(6) prerequisites (or the "identical" requirements in

N.J.S.A. 9:6-8.46(a)(3), id. at 347), solely because the appellant had expressly

consented to admitting the report at trial, its admission was proper "without the

necessity of the Division's compliance with the strictures of the Rules." Id. at

348. Finally, we note that, on appeal, Yolanda has not objected to the trial

court's reliance on Zachary's and Lynn's disclosures, and, in fact, has

affirmatively relied on certain of their statements in her merits briefs.

Accordingly, we consider any argument that the court erred in considering those

statements waived. See Weiss v. Cedar Park Cemetery, 240 N.J. Super. 86, 102

(App. Div. 1990).

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450 N.J. Super. 210, 237 (App. Div. 2017) (stating "competent proof of the

abuse or neglect of a sibling is admissible in considering harm to a child in a

Title [Thirty] proceeding").

B. Prong Three 8

Yolanda next asserts the Division did not make reasonable efforts to

provide services to correct the circumstances that led to the removal of the

children. Again, we disagree.

Here, the court concluded that the Division offered services to Yolanda

and, while she participated, she did not complete the recommended services "to

the point where she [could] safely in the reasonably foreseeable future have

these children returned to her." The court noted that Yolanda continued her

relationship with David through regular contact. Finally, because the children's

biological father, James, completed an identified surrender of his parental rights,

8

As noted, Yolanda has not argued that the Division failed to establish prong

two of N.J.S.A. 30:4C-15.1(a). We have nevertheless independently reviewed

the record and are satisfied that the Division clearly and convincingly satisfied

this statutory element as well. Indeed, there was ample support in the record for

the court's finding that Yolanda's continued relationship with David showed she

was unwilling to provide a safe and stable home for Lynn and Zachary and she

would continue to put the children in danger as a result of "the volatile nature of

their relationship."

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and no other alternatives placements were suggested, the court determined there

were no alternatives to termination of parental rights.

There was overwhelming evidence in the record to support the court's

conclusion that Division made reasonable efforts to help Yolanda correct the

circumstances that had led to her children's removal. The Division facilitated

visitation with the children, referred Yolanda to parenting skills and domestic

violence classes, referred her to housing authorities to assist her in finding a new

apartment that was not in close proximity to David, and made referrals for

therapists. Despite these services, Yolanda failed to internalize any information

or benefit from the classes on parenting skills or domestic violence.

Yolanda contends that the domestic violence counseling was inadequate

because the Division failed to guarantee the confidentiality of her therapy

sessions with Dr. Seidman and Dr. Schafer. She claims that the purported lack

of confidentiality of her therapy records caused her to deny that David injured

Henry for fear that David would harm her. Yolanda's argument that David could

potentially have future access to these psychological reports because he is

Jennifer's father is, at best, speculative. Indeed, there was is no evidence in the

record to suggest that her therapists shared documents or information regarding

Yolanda with David, or intended to do so in the future.

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C. Prong Four

Yolanda also raises a number of challenges regarding the court's prong

four finding. First, she contends that the Division failed to introduce competent

evidence that the resource parents wished to adopt the children, and the court

should have considered the possibility of kinship legal guardianship (KLG).

Second, Yolanda maintains that Dr. Lee's conclusions were not corroborated by

his observations, and he inconsistently applied his methodology. Again, we

disagree.

In considering the fourth prong, and relying on the uncontroverted

testimony of Dr. Lee, the court concluded that terminating Yolanda's parental

rights would not do more harm than good. It found that the resource parents

could "deal with" any adverse effects of the termination, but that Yolanda would

"never be able to deal with the problems that [arose] from" removing the

children from the resource parent. The record fully supports these conclusions.

As to Yolanda's first argument, Yolanda waived the issue by not objecting

to the testimony at trial. M.C. III, 201 N.J. at 341. Moreover, as the court

correctly noted in its discussion of prong three, neither the Division nor Yolanda

offered any alternative placements. Additionally, Melendez testified that he

explained KLG to the resource parents, and that they preferred adoption. Since

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adoption was an option, KLG was not a defense to termination. See N.J. Div.

of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004) (stating "when . . .

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

defense to termination of parental rights").

With respect to Yolanda's argument that Dr. Lee's conclusions were not

corroborated by his observations, and that he inconsistently applied his

methodology, Yolanda did not present any expert witness to refute or contest

Dr. Lee's methodology during trial. Additionally, the court, who was in the best

position to evaluate Dr. Lee's credibility, found his testimony and his

conclusions to be "credible, believable, and uncontroverted." See State v.

Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000) ("The reviewing court must

give deference to the findings of the trial judge which are substantially

influenced by his or her opportunity to hear and see the witnesses and to have

the 'feel' of the case, which a reviewing court cannot enjoy."). In sum, we have

reviewed Dr. Lee's testimony and conclude Yolanda's challenges to the

reliability and consistency of his opinions are without merit.

III.

Yolanda also argues that the trial court violated her Fifth Amendment

rights against self-incrimination when it permitted the Division to call her as a

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witness at the Title Nine abuse and neglect fact-finding proceeding, and then

incorporated its findings from the Title Nine proceedings in its oral decision in

the guardianship matter. She additionally asserts that having the same trial judge

preside over both proceedings created an appearance of judicial bias that

requires reversal. We conclude that Yolanda's arguments are entirely without

merit.

In order to address Yolanda's Fifth Amendment challenge, we discuss

some basic principles underlying that constitutional and common law principle,

and its relevance in Title Nine and Title Thirty proceedings. Our Supreme Court

recently reaffirmed that "[t]he right against self-incrimination is guaranteed by

the Fifth Amendment to the United States Constitution and this state's common

law, now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E.

503." State v. S.S., 229 N.J. 360, 381 (2017) (quoting State v. Nyhammer, 197

N.J. 383, 399 (2009)). Both N.J.S.A. 2A:84A-19 and N.J.R.E. 503 contain

identical language that provides "every natural person has a right to refuse to

disclose in an action or to a police officer or other official any matter that will

incriminate him or expose him to a penalty . . . ."

When determining whether a matter is incriminating, the court must

consider "whether a criminal prosecution is to be apprehended, other matters in

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evidence, or disclosed in argument, the implications of the question, the setting

in which it is asked, the applicable statute of limitations[,] and all other factors

. . . ." N.J.R.E. 502. Moreover, "[t]he right against self-incrimination is

'confined to instances where the witness has reasonable cause to apprehend

danger from a direct answer.'" N.J. Div. of Child Prot. & Permanency v. S.K.,

456 N.J. Super. 245, 266 (App. Div. 2018) (quoting Hoffman v. United States,

341 U.S. 479, 486 (1951)). As such, the court "must determine that the

individual seeking to invoke the protection of the Fifth Amendment is

'confronted by substantial and real, and not merely trifling or imaginary, hazards

of incrimination.'" Ibid. (quoting United States v. Apfelbaum, 445 U.S. 115,

128 (1980)).

We acknowledge that our Supreme Court has identified termination of

parental rights actions as quasi-criminal matters. See In re Guardianship of G.S.,

137 N.J. 168, 177 (1994); In re Guardianship of Dotson, 72 N.J. 112, 118 (1976)

(recognizing that while a termination case "is denominated as a civil matter, it

is almost quasi-criminal in nature, since it seeks to terminate for cause all

parental ties between the children here involved and their natural parents").

Further, in certain circumstances, particularly where a defendant's criminal case

was pending when she testified during a Title Nine fact-finding hearing, we have

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concluded that a defendant's Fifth Amendment rights could be impacted. See

S.K., 456 N.J. Super. at 271 (holding that "[b]ased on the related criminal

charges pending against him at the time, defendant had a well-founded basis to

believe that answering the [Deputy Attorney General's] questions [at the fact -

finding hearing] would violate his right against self-incrimination under the

Fifth Amendment and N.J.R.E. 503").

However, we have also stated that "[a]n action for termination of parental

rights is a civil action." N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360

N.J. Super. 426, 467 (App. Div. 2003). Thus, although termination of parental

right cases are recognized as "quasi criminal," and require additional

protections, there is no case law to support defendant's claim that Title Thirty

proceedings are equal to criminal proceedings in the context of the right against

self-incrimination.

Applying the aforementioned principles to the facts before us, we

conclude that the court did not violate Yolanda's Fifth Amendment rights. First,

as noted, despite the "quasi-criminal" nature of Title Thirty proceedings, those

actions, as well as Title Nine matters, remain civil proceedings, and the full

panoply of rights afforded to a criminal defendant do not apply. See State v.

P.Z., 152 N.J. 86, 111-12 (1997). Second, unlike the defendant in S.K., at the

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time defendant testified at the May 2016 Title Nine fact-finding proceeding, she

had already plead guilty to fourth-degree child abuse by neglect over a year

earlier. Third, when she testified, the court had not even approved a permanency

plan of termination of parental rights, nor had the Division filed its guardianship

complaint. Under these circumstances, we cannot conclude that defendant had

"'reasonable cause to apprehend danger from a direct answer.'" S.K., 456 N.J.

Super. at 265 (quoting Hoffman, 341 U.S. at 486), such that her Fifth

Amendment rights were violated when she testified at the Title Nine fact-finding

proceeding. Moreover, as we have discussed, the evidence presented in the

guardianship trial clearly and convincingly satisfied N.J.S.A. 30:4C-15.1(a),

independent of the court's findings in the Title Nine matter.

Finally, we find defendant's claim that "an appearance of judicial bias"

existed caused by the same judge presiding over the Title Nine and Title Thirty

proceedings of insufficient merit to warrant extended discussion in a written

opinion. R. 2:11-3(e)(1)(E). From our review of the record, we conclude Judge

Johnson conscientiously and thoroughly considered all of the competent

evidence, and conducted the proceedings in a fair and unbiased manner.

Affirmed.

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