"the credibility of the expert and the weight to be accorded his testimony rest in the domain of the trier of fact"
How later courts described this case
- "the credibility of the expert and the weight to be accorded his testimony rest in the domain of the trier of fact"
- stating "[a]ccording to [Rule] 2:10-2, an appellate court will not reverse an error not brought to the attention of the trial court unless the appellant shows that it was 'plain error,' that is, 'error clearly capable of producing an unjust result'"
Written by the judges who cited it.
The opinion
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NOT FOR PUBLICATION WITHOUT THE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-1588-17T3
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
E.T.,
Defendant,
and
R.M.,
Defendant-Appellant.
____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF H.R.M.
and S.E.M., Minors.
____________________________
Submitted October 30, 2018 – Decided November 20, 2018
Before Judges Rothstadt, Gilson and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FG-04-0171-17.
Joseph E. Krakora, Public Defender, attorney for
appellant (Laura Orriols, Designated Counsel, on the
briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Laura A. Dwyer, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Meredith A. Pollock, Deputy
Public Defender, of counsel; Danielle Ruiz, Designated
Counsel, on the brief).
PER CURIAM
Defendant R.M.1 appeals from the Family Part's November 16, 2017
guardianship judgment and order terminating his parental rights to his and
defendant E.T.'s (Elizabeth) 2 two children, H.R.M. (Hannah) and S.E.M.
(Stephen), who were born in 2016 and 2017 respectively. The Division of Child
Protection and Permanency (Division) and the Law Guardian contend that the
order should be affirmed. After reviewing the record in light of the applicable
1
To protect privacy interests, we use initials and fictitious names for the parents
and children. See R. 1:38-3(d)(12).
2
Elizabeth has not filed an appeal in this matter.
A-1588-17T3
2
legal standards, we affirm substantially for the reasons stated by Judge Francine
I. Axelrad in her November 16, 2017 oral decision.
The pertinent evidence was set forth in Judge Axelrad's decision and need
not be repeated here in detail. The children have never lived with defendant,
and he has not been active in either child's life due to his substance abuse
problems, history of domestic violence, and criminal behavior that led to his
repeated incarcerations. Throughout the litigation of this case, he repeatedly
missed scheduled visitations and did not avail himself of court-ordered services
despite the Division's attempts to schedule these services on his behalf.
Significantly, defendant did not even make consistent efforts to communicate
with the Division about his children.
This action began a month after Hannah's birth, in May 2016, when the
Division took custody of her based upon Elizabeth's use of controlled dangerous
substances, her and Hannah testing positive for opiates at the child's birth, 3
defendant's failure to respond to the Division's attempts to contact him, and a
report that defendant had recently assaulted Elizabeth. After the court granted
3
The circumstances of the child's birth, which Judge Axelrad described as
"horrific," included Elizabeth being alone with defendant in a motel room taking
narcotics and delivering the baby herself, all in order to avoid the Division from
finding out about the child being born.
A-1588-17T3
3
the Division care and custody of Hannah, it placed the newborn child with her
maternal aunt and uncle. According to the Division's caseworker, that
placement caused an incident of domestic violence against Elizabeth by
defendant that resulted in Elizabeth sustaining injuries to her eye and face.
A year later, Stephen was born while defendant was incarcerated. The
Division took custody of Stephen at birth after he and Elizabeth tested positive
for opiates, cocaine, and buprenorphine. After the court granted the Division
custody and care, the Division placed Stephen with Hannah in the care of their
maternal aunt and uncle.
During the year between the children's birth dates, defendant did not stay
in regular contact with the Division or otherwise make any effort to have contact
with his child, even though the court had ordered weekly visitation. He
repeatedly missed appointments for his court-ordered services and
psychological and substance abuse evaluations. From July to December 2016,
the Division repeatedly attempted to contact defendant without success. In late
December 2016, the Division learned he was incarcerated, and on January 3,
2017, defendant called the assigned caseworker from jail. He explained that he
was unsure when he would be released, and agreed to maintain contact with the
caseworker.
A-1588-17T3
4
On May 4, 2017, two caseworkers met with defendant at the jail. During
this meeting, he admitted that he had used cocaine throughout his relationship
with Elizabeth, had previously stolen from others to purchase illicit substances,
and had last used cocaine in December 2016. Defendant explained that he
stopped attending visitations with Hannah and missed court appearances
because he had not received notice. He stated that he expected to be released
from jail in June or July of 2017, and would cooperate with the Division once
released.
In accordance with a previously court-approved permanency plan, on May
16, 2017, the Division filed a complaint for guardianship of Hannah and
Stephen. Afterward, on July 11, 2017, defendant was released from jail. During
the ensuing days in July, police responded to numerous reports of domestic
violence between defendant and Elizabeth, and multiple assaults between
defendant and other individuals.
On July 21, 2017, the Division and defendant had their first contact since
his release from jail. The Division scheduled visitation for defendant with his
children and from July 28 to September 11, 2017, defendant attended weekly
visits. On September 11, 2017, he appeared sick and ended the visit early. After
that visit, he missed two more visits. On September 27, 2017, defendant was
A-1588-17T3
5
arrested for a violation of probation and remained incarcerated throughout the
rest of the court proceedings, including the guardianship trial in November 2017,
which he attended.
Prior to his incarceration, defendant had completed a psychological
evaluation with Linda R. Jeffrey, Ph.D. in August 2017. Dr. Jeffrey concluded
that defendant suffered from a severe, chronic adjustment disorder with a history
of problems with the law; an intermittent explosive disorder; a specific learning
disorder with impairment in written expression; a substance use disorder with a
high probability of prescription drug abuse; and an antisocial personality
disorder with narcissistic, paranoid, and borderline personality disorder features.
She further found that defendant had a serious parent-child relational problem,
had missed many visits due to his incarceration, and had a history of domestic
violence based on the reported physical violence towards Elizabeth and a
restraining order obtained against him in 2005 by the mother of his other two
children. Those elements, coupled with defendant's unresolved problems with
the law and untreated substance abuse disorder, led Dr. Jeffrey to opine that
defendant could not provide a minimal level of safe parenting to Hannah and
Stephen.
A-1588-17T3
6
The doctor also conducted bonding evaluations between the children and
defendant, and between them and their maternal aunt and uncle. She found that
Hannah related to defendant as a "pleasant playmate," and opined that severance
of Hannah and Stephen's contact with defendant was "unlikely to cause either
child serious and enduring harm." As to the maternal aunt and uncle, Dr. Jeffrey
found Hannah related to them as her psychological parents, and opined that
Hannah "displayed a secure attachment toward both her maternal aunt and
uncle."
On October 3, 2017, the Division advised the court that neither Elizabeth
nor defendant were engaging in any court-ordered services. The Division
further advised that it had considered the children's paternal grandmother and
paternal aunt as potential placements, but was ruling them out as options for
"best interest reasons."
The Division presented Dr. Jeffrey and caseworker Shareda Cunningham
as witnesses at the guardianship trial held on November 15 and 16, 2017.
Defendant attended the trial, was represented by counsel, and testified as his
only witness.
At the conclusion of the testimony and counsels' summations, Judge
Axelrad placed her decision on the record. Initially, the judge made detailed
A-1588-17T3
7
credibility findings in which she concluded that both Dr. Jeffrey and
Cunningham were credible and defendant was not. In reaching her conclusion,
the judge noted that the doctor's opinions were unrefuted by defendant and that
defendant's testimony was "flip" and unbelievable.
Turning to the evidence, the judge found the Division proved by clear and
convincing evidence all four prongs necessary to terminate defendant's parental
rights under N.J.S.A. 30:4C-15.1(a). She also concluded that defendant's history
of domestic violence, "unremedi[]ed drug use," together with his repeated
incarcerations and failure to "offer[] a viable plan for a safe and stable home,"
and his participation in Hannah's birth without insuring the child's health and
safety, exposed the children to a risk of harm. The judge further found that
defendant was unwilling or unable to eliminate the harm facing Hannah and
Stephen despite the Division providing him with a number of services and as a
result, he was incapable of meeting any of the children's material or emotional
needs. She determined the Division had made reasonable efforts to reunify
defendant with Hannah and Stephen, and that the Division had extensively
explored, but properly ruled out, placement of the children with other family
members. Finally, the judge found it would not do more harm than good to
terminate defendant's parental rights.
A-1588-17T3
8
After placing her decision on the record, Judge Axelrad entered a
judgment of guardianship, terminating Elizabeth's and defendant's parental
rights and granting the Division guardianship of Hannah and Stephen. This
appeal followed.
On appeal, defendant presents the following points of argument:
POINT I
DCPP WILLFULLY VIOLATED THE
DEFENDANT'S EQUAL PROTECTION AND DUE
PROCESS RIGHTS TO EXACT ITS
PREDETERMINED OUTCOME FOR THE CASE
(NOT RAISED BELOW).
POINT II
THE JUDGMENT TERMINATING DEFENDANT'S
PARENTAL RIGHTS SHOULD BE REVERSED
BECAUSE THE LOWER COURT ERRED IN
FINDING THAT DCPP PRODUCED CLEAR AND
CONVINCING EVIDENCE THAT THE CHILDREN
WERE AT RISK FROM THE PARENTAL
RELATIONSHIP.
POINT III
THE JUDGMENT OF TERMINATION OF
PARENTAL RIGHTS SHOULD BE REVERSED
BECAUSE THE LOWER COURT ERRED IN
FINDING THAT DCPP FULFILLED ITS
STATUTORY OBLIGATIONS REQUIRED UNDER
THE THIRD PRONG OF THE BEST INTERESTS
TEST, AND THE COURT MISINTERPRETED AND
MISAPPLIED THE LAW IN THIS PRONG.
A-1588-17T3
9
POINT IV
THE JUDGMENT OF TERMINATION OF
PARENTAL RIGHTS MUST BE REVERSED
BECAUSE THE LACK OF VISITATION FATALLY
UNDERMINED THE ABILITY OF DCPP TO MEET
ITS UNQUESTIONABLY HEAVY BURDEN TO
PROVIDE CLEAR AND CONVINCING EVIDENCE
TO TERMINATE PARENTAL RIGHTS.
POINT V
THE LOWER COURT ERRED IN RELYING ON THE
DCPP EXPERT'S OPINION AS IT DID NOT
CONTRIBUTE TO AN UNDERSTANDING OF THE
FACTS AT ISSUE.
Our review of an order terminating parental rights is limited. N.J. Div. of
Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We will uphold the
trial court's findings as long as they are "supported by adequate, substantial, and
credible evidence." Ibid. "We accord deference to factfindings of the family
court because it has the superior ability to gauge the credibility of the witnesses
who testify before it and because it possesses special expertise in matters related
to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448
(2012). Overturning a family court's factual findings is appropriate only when
the findings "went so wide of the mark that the judge was clearly mistaken."
N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
A-1588-17T3
10
Nonetheless, we do not afford "special deference" to the family court's
interpretation of the law. D.W. v. R.W., 212 N.J. 232, 245 (2012).
Applying our deferential standard of review, we conclude that Judge
Axelrad's decision was supported by substantial credible evidence and her legal
conclusions were correct. See F.M., 211 N.J. at 448-49. We affirm substantially
for the reasons expressed in the judge's comprehensive oral decision. We
conclude that defendant's appellate arguments challenging the judge's
determination are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.
Defendant did not raise his equal protection argument or object to Dr.
Jeffrey's testimony at trial. Generally, we will not consider issues not raised
before the trial court "unless the questions so raised on appeal go to the
jurisdiction of the trial court or concern matters of great public interest." N.J.
Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 343 (App. Div.
2007) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
Therefore, because defendant's contentions address "[p]arental rights" which are
a "matter[] of great public interest, we have considered [his] arguments on this
issue." Ibid. However, we conclude his supporting contentions about being
treated differently than Elizabeth in the litigation or not being provided with
A-1588-17T3
11
sufficient notice of hearings are belied by the facts in the record. Similarly, we
conclude that the record clearly established that Dr. Jeffrey was qualified, her
evaluation addressed relevant issues, and her conclusions were supported by
facts in the record, which permitted Judge Axelrad to accept the doctor's
unrefuted testimony. See Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77,
85-86 (App. Div. 1961) ("the credibility of the expert and the weight to be
accorded his testimony rest in the domain of the trier of fact"). We discern no
error or unjust result in this case. See B.H., 391 N.J. Super. at 343 (stating
"[a]ccording to [Rule] 2:10-2, an appellate court will not reverse an error not
brought to the attention of the trial court unless the appellant shows that it was
'plain error,' that is, 'error clearly capable of producing an unjust result'").
Affirmed.
A-1588-17T3
12