noting that Tier II offenders "present[] a moderate risk of re-offense"
How later courts described this case
- noting that Tier II offenders "present[] a moderate risk of re-offense"
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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-5432-16T3
A-5433-16T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
v.
N.M.Y. and J.D.M., Jr.,
Defendants-Appellants.
__________________________
IN THE MATTER OF THE
GURADIANSHIP OF C.J.M.,
a Minor.
_____________________________
Argued telephonically October 10, 20191 –
Decided November 8, 2019
Before Judges Fasciale, Rothstadt and Mitterhoff.
1
We originally scheduled oral argument for October 21, 2019, but due to a
scheduling conflict of one of the attorneys, we held telephonic oral argument on
October 10, 2019.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic County,
Docket No. FG-01-0067-16.
Patricia A. Nichols, Designated Counsel, argued the
cause for appellant N.M.Y. (Joseph E. Krakora, Public
Defender, attorney; Patricia A. Nichols, on the briefs).
Beryl Vurnen Foster-Andres, Designated Counsel,
argued the cause for appellant J.D.M., Jr. (Joseph E.
Krakora, Public Defender, attorney; Beryl Vurnen
Foster-Andres, on the briefs).
Alexa L. Makris, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Alexa L. Makris, on the
brief).
Lisa Marie Black, Designated Counsel, argued the
cause for minor (Joseph E. Krakora, Public Defender,
Law Guardian, attorney; Lisa Marie Black, on the
brief).
PER CURIAM
N.M.Y. (the mother) and J.D.M., Jr. (the father) (collectively defendants)
appeal from a July 31, 2017 order terminating their parental rights to C.J.M. (the
child), and awarding guardianship in favor of the Division of Child Protection
A-5432-16T3
2
and Permanency (the Division). The judge conducted a lengthy trial, entered
judgment, and rendered a thorough eighty-three page written decision. 2
On appeal, the mother argues:
POINT I
THE [JUDGE'S] ABUSE OF DISCRETION IN
REPEATEDLY REFUSING TO CONDUCT THE
BEST INTERESTS PLACEMENT REVIEW
HEARING, REQUESTED NUMEROUS TIMES BY
COUNSEL FOR [DEFENDANTS] AND THE LAW
GUARDIAN THROUGHOUT TWO YEARS OF
LITIGATION, WAS OF SUCH MAGNITUDE AS TO
PREJUDICE [DEFENDANTS] AND ADVERSELY
IMPACT THE OUTCOME OF THE GUARDIANSHIP
TRIAL.
POINT II
LIMITING DEFENSE EXPERTS WAS AN ABUSE
OF DISCRETION.
A. Dr. Figurelli
B. Dr. Quintana
POINT III
THE [JUDGE'S] OPINION FAILED TO SATISFY
R[ule] 1:7-4 AS IT DID NOT CONTAIN FINDINGS
OF FACT OR CONCLUSIONS OF LAW
CONSISTENT WITH EITHER THE TRIAL
EVIDENCE OR THE RELEVANT STATUTORY
AND CASE LAW IN ORDER TO JUSTIFY AN
AWARD OF GUARDIANSHIP TO PLAINTIFF. IN
2
During a limited remand, the judge rendered a written opinion and related
order dated August 14, 2018, which clarified part of the evidence and concluded
that there was no spoliation of evidence.
A-5432-16T3
3
ADDITION, THE [JUDGE] ERRONEOUSLY TRIED
TO FIT THE SQUARE PEG OF FAMILIES IN NEED
OF SERVICES INTO THE ROUND HOLE OF BEST
INTEREST OF THE CHILD GUARDIANSHIP.
(Partially Raised Below).
A. The Rights And Interests Of Families In Need Of
Services Are Not Properly Adjudicated In The Crucible
Of [The] [Four]-Prong Best Interest Analysis.
B. Families In Need Of Services Do Not Have The
History Of Harm Or Fault Required For The [First]
Prong.
C. Families In Need Of Services Are Not Required To
Cure Family Needs As Under The [Second] Prong.
D. Families In Need Of Services Are Entitled To More,
And More Effective, Reasonable Efforts Than Required
For The [Third] Prong.
E. Families In Need Of Services, Without The
Reasonable Efforts Contemplated Under That Statute,
Are Impeded, By Plaintiff, From Achieving A Bond
That Would Survive [The] [Fourth] Prong Analysis.
On appeal, the father argues:
POINT I
THE JUDGE CLEARLY ERRED IN FAILING TO
ADMIT THE FOSTER FATHER'S RACIST AND
VIOLENT FACEBOOK POSTS INTO EVIDENCE.
POINT II
THE JUDGE CLEARLY ERRED IN ADMITTING
DR. LEE'S TESTIMONY BASED ON THE
RORSCHACH TEST.
A-5432-16T3
4
POINT III
THE JUDGE ERRONEOUSLY RULED THAT THE
FOUR PRONGS OF THE BEST INTERESTS TEST
FAVORED TERMINATION OF PARENTAL
RIGHTS WHERE THE EVIDENCE SHOWED THAT
[THE CHILD] WAS BONDED WITH [THE FATHER]
AS WELL AS THAT [THE FATHER] WAS A GOOD
FATHER, SUCCESSFULLY COMPLETED
NUMEROUS SERVICES, NEVER CONSUMED
ANY ILLICIT SUBSTANCES, HAD A STABLE JOB
AND INCOME, AND WAS PREVENTED FROM
COMPLETING THE LIVING WITH CHILDREN
EVALUATION WHILE THE FOSTER FATHER IS
AN ACTIVELY USING ALCOHOLIC AND RACIST
AND BOTH FOSTER PARENTS WERE
UNEMPLOYED.
A. The Judge's First Prong Finding Was In Error
Because Neither Parent Ever Harmed This Child, Each
Had Enrolled In And Successfully Completed A Litany
Of Services, Did Not Use Any Illicit Substances
Through The Duration Of The Matter, There Was No
Reason To Believe [The Father] Had A Proclivity
Towards Criminal Recidivism, Their Interactions With
This Child Were At All Times Nurturing And Safe, And
The Judge Relied Heavily On Dr. Lee's Unsupported
Opinions.
B. DCPP Failed To Prove The Second Prong Of The
Best Interests Test Because [The Father] Completed
Domestic Violence Counseling, Refrained From Any
Illicit Substances, Was Bonded To His Son, And Was
An Adequate Parent.
C. DCPP Did Not Satisfy The Third Prong Of The Best
Interests Test Because It Failed To Place The Boy With
His Aunt And Uncle, Refused To Bring Him For The
Living With Children Evaluation, And Failed To
A-5432-16T3
5
Investigate The Foster Father's Racist And Violent
Facebook Posts.
D. DCPP Failed To Prove The Fourth Prong Of The
Best Interests Test Because The Father Has Properly
Addressed Any Substance Issues As Well As His Past
Crime, Has A Stable Home, Employment, And
Relationship, While The Foster Parents Do Not Work,
Face Severe Financial Hardships, Would Cut The Boy
Off From All His Family, And The Foster Father Will
Be Nearly [Eighty] By The Time [The Child] Is
Finishing High School, Is Racist, Endorses Violence,
And Is An Alcoholic While Still Actively Consuming
Alcohol.
I.
We begin our discussion with the well-settled legal framework regarding
the termination of parental rights. 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).
However, that right 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 created a test to determine when it is
in the child's best interest to terminate parental rights. In order to secure parental
A-5432-16T3
6
termination, N.J.S.A. 30:4C-15.1(a) requires the Division to 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
(4) Termination of parental rights will not do more
harm than good.
See also A.W., 103 N.J. at 604-11. The four prongs of the test are not "discrete
and separate," but "relate to and overlap with one another to provide a
comprehensive standard that identifies a child's best interests." K.H.O., 161 N.J.
at 348. "The considerations involved in determinations of parental fitness are
'extremely fact sensitive' and require particularized evidence that address the
A-5432-16T3
7
specific circumstances in the given case." Ibid. (quoting In re Adoption of
Children by L.A.S., 134 N.J. 127, 139 (1993)).
Our review of a family judge's factual findings is limited. Cesare v.
Cesare, 154 N.J. 394, 413 (1998). "When a biological parent resists termination
of his or her parental rights, the [judge's] function is to decide whether that
parent has the capacity to eliminate any harm the child may already have
suffered, and whether that parent can raise the child without inflicting any
further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81,
87 (App. Div. 2006). The factual findings that support such a judgment "should
not be disturbed unless 'they are so wholly insupportable as to result in a denial
of justice,' and should be upheld whenever they are 'supported by adequate,
substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super.
172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co.
of Am., 65 N.J. 474, 483-84 (1974)). "[T]he conclusions that logically flow
from those findings of fact are, likewise, entitled to deferential consideration
upon appellate review." R.L., 388 N.J. Super. at 89.
II.
We now turn to defendants' argument that the judge erred in finding that
the Division proved each of the four prongs under the best interests test by clear
A-5432-16T3
8
and convincing evidence. We disagree with defendants' contentions, and as to
the four prongs, we affirm substantially for the reasons given by the judge. We
add the following.
A.
The first prong requires the Division to prove that "[t]he child's safety,
health, or development has been or will continue to be endangered by the
parental relationship[.]" N.J.S.A. 30:4C-15.1(a)(1). "Although a particularly
egregious single harm can trigger the standard, the focus is on the effect of harms
arising from the parent-child relationship over time on the child's health and
development." K.H.O., 161 N.J. at 348. "[T]he attention and concern of a caring
family is 'the most precious of all resources.'" In re Guardianship of D.M.H.,
161 N.J. 365, 379 (1999) (quoting A.W., 103 N.J. at 613). "[W]ithdrawal of
. . . solicitude, nurture, and care for an extended period of time is in itself
a harm that endangers the health and development of the child." Ibid.
The judge found that the mother was unable to provide for the child's
health, safety, and development based on her failure to address her substance
abuse issues. In reaching this conclusion, the judge relied on bonding
evaluations and expert testimony from psychologists retained by both the
Division (Dr. Alan Lee) and defendants (Dr. John Quintana). Indeed, the
A-5432-16T3
9
Division removed the child from the home when he was just over three months
old, in part, because the mother tested positive for Suboxone (a controlled
dangerous substance), and because it received referrals that defendants sold
drugs out of their home, in which others allegedly overdosed. Thus, the Division
satisfied prong one as to the mother.
The father also was unable to provide for the child's health, safety, and
development. In support of that finding, the judge determined that his
personality traits—anger, resentfulness, and self-centeredness—and his
domineering, manipulative, and aggressive behaviors adversely impacted his
overall functioning. Dr. Lee provided these diagnostic impressions, and Dr.
Quintana agreed the father suffered from maladaptive judgment and personality
traits, including risk of substance abuse problems. Moreover, the father, a
Megan's Law offender, violated his parole conditions when he lived with the
child. The father's failure to address these issues prolonged his out-of-home
placement, which in itself is a harm. See D.M.H., 161 N.J. at 379 (noting
"withdrawal of . . . solicitude, nurture, and care for an extended period of time
is in itself a harm that endangers the health and development of the child").
Thus, the Division satisfied prong one as to the father.
A-5432-16T3
10
We emphasize, as to prong one, that the Division can meet its burden by
showing conduct "detrimental to the physical or mental health of the child . . .
in the form of actual or imminent harm." A.W., 103 N.J. at 616 (emphasis
added). "[T]he cornerstone of the inquiry is not whether the biological parents
are fit but whether they can cease causing their child harm." J.C., 129 N.J. at
10. "Courts need not wait to act until a child is actually irreparably impaired by
parental inattention or neglect." D.M.H., 161 N.J. at 383. "[A]ny question of
the parental role is oriented only to the prediction of the future condition of the
child. Parental behavior is relevant only insofar as it indicates a further
likelihood of harm to the child in the future." A.W., 103 N.J. at 615-16.
Contrary to the father's contention, the standard is not whether the parents have
caused harm, but "whether it is reasonably foreseeable that the parents can cease
to inflict harm[.]" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167
(2010) (quoting A.W., 103 N.J. at 607). Here, the judge found otherwise.
B.
The second prong of the best interests test requires the Division to present
clear and convincing evidence that "[t]he parent 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." N.J.S.A. 30:4C-15.1(a)(2). The relevant
A-5432-16T3
11
inquiries for the judge are whether the parent cured and overcame the initial
harm that endangered the child, and whether the parent is able to continue the
parental relationship without recurrent harm to the child. K.H.O., 161 N.J. at
348-49. To satisfy its burden, the Division must show continued harm to the
child because the parent is unable or unwilling to remove or overcome the harm.
N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 483 (App.
Div. 2012). The first and second prongs relate to one another, and often,
"evidence that supports one informs and may support the other as part of the
comprehensive basis for determining the best interests of the child." D.M.H.,
161 N.J. at 379.
"Parental unfitness may also be demonstrated if the parent has failed to
provide a 'safe and stable home for the child' and a 'delay in permanent
placement' will further harm the child." K.H.O., 161 N.J. at 352 (quoting
N.J.S.A. 30:4C-15.1(a)(2)). "Keeping [a] child in limbo, hoping for some long
term unification plan, would be a misapplication of the law." N.J. Div. of Youth
& Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001).
As to prong two, the judge found—relying on Dr. Lee's testimony—that
the mother was incapable of providing even minimally adequate care to the
child. And the judge accepted testimony from the Law Guardian's psychologist
A-5432-16T3
12
(Dr. Gregory Gambone) that the mother did not have a significant bond with the
child, which led the judge to conclude the mother, as opposed to the resource
parents, was incapable of providing permanency. Dr. Lee opined that the child
had an "ambivalent and insecure attachment" to the mother, and Dr. Quintana
testified that the mother was "presently incapable of appropriately and safely
caring for [the child]." These experts said the mother was unable to provide a
safe and stable home for the child. The mother also failed to participate in court-
ordered substance abuse treatment and individual counseling, and she did not
intend to complete those services. Thus, the Division satisfied prong two as to
the mother.
Like the mother, the judge found that the father was unable or unwilling
to correct the circumstances that led to the child's removal. The father was
unable to provide a safe and stable home, in part because he did not complete
recommended services, including domestic violence counseling, court-ordered
substance abuse treatment, and a living with children evaluation (LWC).
Relying on Dr. Lee's testimony, the judge found that the father had a poor
prognosis for significant and lasting change, and that the father presented
ongoing concerns about his ability to parent. Thus, the Division satisfied prong
two as to the father.
A-5432-16T3
13
The father contends he engaged in a "litany of services," including five
years of sex offender therapy. Regarding the LWC assessment, he argues that a
Division caseworker did not offer to bring the child for phase three of the
evaluation, and that the caseworker denied his request to bring the child to the
evaluation to complete the assessment. He asserts there was no evidence that he
was violent in the past nor that he needed drug treatment.
As a condition of parole, the father was required to finish the LWC
evaluation before he could legally reside with the child. The primary cause of
the child's removal was the father's failure to complete the LWC. Four months
after his removal, at a fact-finding hearing, the father averred he completed the
LWC assessment and only needed the Division's assistance to pay the fee to
obtain the final report. Seven months after that, and after the court ordered the
Division to pay a share of the LWC fee, the father's parole officer notified the
Division that he did not start the three-step LWC assessment. The father
contested this, stating that he completed the second step of the LWC process in
September 2015 and only needed to complete the third step—a session with the
child. He alleged that he tried to set the session up, but was unable to, because
a Division caseworker told him the session could not happen. The record does
A-5432-16T3
14
not contain this correspondence. As of trial, the father still did not complete the
evaluation.
The father missed at least six substance abuse treatment appointments
between October 2015 and January 2016, despite being ordered to attend. The
judge issued three more orders directing the father to undergo substance abuse
treatment and evaluation, yet, on September 1, 2016, the substance abuse
treatment was terminated for noncompliance when the father failed to access
"any services despite numerous attempts by [the] agency." Thus, there is ample
evidence that he did not meaningfully engage in drug treatment and other
services. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76,
112 (App. Div. 2004).
Moreover, we reject the father's general assertion that the judge erred by
relying on Dr. Lee's findings rather than adopting Dr. Quintana's conclusions.
Although he does not specify which of Dr. Quintana's conclusions, in context,
it appears the father is referencing Dr. Lee's testimony on two subjects: (1) the
existence of a secure bond and attachment between the father and the child; and
(2) the father's risk of reoffending, notably another sex offense.
Dr. Lee did not contend, as the father implies, that the length of time the
child spent in foster care was dispositive as to defendants' bond with the child.
A-5432-16T3
15
Dr. Lee conducted six bonding evaluations, and he based his conclusions on
observations from those evaluations and on review of the case record. During
the bonding evaluation with the father, the child showed little emotion, was
nonverbal, tried to leave the room twice, and did not appear happy. This led Dr.
Lee to conclude the child lacked a significant, positive attachment to the father.
Dr. Lee found, by contrast, that the child's bond with his resource parents was
positive and enthusiastic.
It is true that Dr. Quintana made different observations. During his own
bonding evaluation, conducted about three months after Dr. Lee's evaluation, he
observed that the child was very happy to see the father, engaged with him, and
hugged him. He called him "father" and listened when the father asked him to
help clean. Based on this, Dr. Quintana concluded that the father was a
significant parental figure to the child.
In favoring Dr. Lee's testimony over Dr. Quintana's, the judge relied, in
part, on Dr. Gambone's conclusion about the strength of the child's bond with
the resource parents. Dr. Gambone testified, similar to Dr. Lee, that the child
formed a positive emotional attachment with his resource parents and had an
"enduring cognitive and emotional dependence" on them.
A-5432-16T3
16
Faced with two experts testifying about dissimilar observations made
during separate bonding evaluations, the judge found that Dr. Lee's and Dr.
Gambone's opinions were more credible than Dr. Quintana's. We defer to that
finding, N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012),
and there is ample support for the judge's finding in the record. C.S., 367 N.J.
Super. at 112. Moreover, Dr. Quintana—like the other experts—agreed that the
child had a "good relationship" with the resource parents and was comfortable
with them.
As to the court's finding that the father had a heightened risk of recidivism,
the judge credited Dr. Lee's opinion that the father had a heightened level of
anger, resentment, impulse control, emotional reactivity, and substance abuse
issues. Dr. Lee's findings were supported by both Dr. Quintana's testimony and
the Division's records. Indeed, the father admitted to Dr. Quintana that he
exhibited poor judgment because of his anger and impatience issues.
As to his history of crime, the father was arrested as a juvenile on a
weapons possession charge, for which he received probation, and as an adult, he
was convicted of two third-degree offenses: burglary in 2009 and endangering
the welfare of a child in 2011. For the latter offense, defendant is subject to
parole supervision for life and is classified as a Tier II sex offender under
A-5432-16T3
17
Megan's Law. The father violated parole in 2012 and was convicted of
obstructing the administration of law in 2016.
Dr. Quintana diagnosed the father with an unspecified personality disorder
with antisocial personality traits. Although the father attended anger
management training, at the time of trial, Dr. Quintana still recommended the
father make further efforts to address his impulsive behavior and anger issues
prior to reunification. In April 2015, the Division received a referral alleging
the father yelled at the mother and was aggressive towards her. In a January
2016 contact sheet, the Division also documented an incident in which the father
was reportedly "irate" and yelling outside a relative's home that the mother was
staying in, leading to police involvement.
Although the father contends he complied with his parole conditions, the
Division's March 3, 2016 contact sheet demonstrates that his parole officer
reported that he was somewhat compliant because he submitted clean urine
screens, but he "missed quite a few sessions" at his drug treatment facility. The
officer concluded the father was therefore "on thin ice." Moreover, as a
condition of the father's parole, he could not have unsupervised overnight
contact with any children, including his own, until he completed the LWC
evaluation. But he lived with the child and his mother in defiance of his parole
A-5432-16T3
18
conditions. At the time of judge's decision, when the child was thirty months
old, the father still did not complete the program.
As to the father's risk of sexually reoffending, Dr. Lee noted that a Tier II
Megan's Law offender equates to a "moderate risk" of committing another
sexual offense. This opinion reinforced the importance of the father complying
with all of his parole conditions. See, eg., In re N.B., 222 N.J. 87, 92 (2015)
(noting that Tier II offenders "present[] a moderate risk of re-offense"). Thus,
as to the second prong, the judge's findings are supported by adequate credible
evidence. C.S., 367 N.J. Super. at 112.
C.
As to prong three, N.J.S.A. 30:4C-15.1(a)(3) requires the Division to
make "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 to "consider[ ] alternatives to termination of parental rights[.]" The judge
found that the Division provided defendants with a "plethora of services," which
we need not repeat here. The Division met prong three. The judge also
determined that the Division adequately assessed the child's placement with
paternal relatives, which we will address.
A-5432-16T3
19
"In reviewing a child's placement, courts must determine whether 'such
placement ensures the safety and health and serves the best interest of the child.'"
N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528 (App.
Div. 2003) (quoting N.J.S.A. 30:4C-51). The child's best interests "is always
the polestar in such matters." N.J. Div. of Child Prot. & Permanency v. C.S.,
432 N.J. Super. 224, 229 (App. Div. 2013). Although the Division has a
statutory duty to evaluate relatives as potential caretakers, there is no
presumption that favors the child's placement with such relatives. See N.J.S.A.
30:4C-12.1; N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 81-
82 (App. Div. 2013). Nevertheless, the Division evaluated paternal relatives,
despite their inconsistent interest and substantial problems with such placement .
The Division removed the child from defendants' home in April 2015.
That month, a caseworker visited the house of paternal relatives (the father's
brother and his girlfriend) and discussed the possibility of placing the child with
them. That option failed because the girlfriend was not interested and was
otherwise overwhelmed with the licensing process. However, the Division
continued pursuing these paternal relatives as a possible placement option.
In July 2015, the Division contacted the paternal relatives asking if they
were interested in being a summer vacation placement for the child. The
A-5432-16T3
20
girlfriend said they could not be such a placement option, and that they were not
interested in subjecting their children to contact with the Division. The
caseworker advised the paternal relatives to contact the Division if they changed
their minds.
In November 2015, the paternal relatives contacted the Division and
expressed an interest in being a placement option for the child. The girlfriend
learned that the Division was assessing their home for the child's placement. In
January 2016, the Division informed the judge about the paternal relatives'
interest, but indicated that it requested police reports due to concerns emanating
from their background checks. The brother had a criminal drug possession
charge.
Later that month, the paternal relatives advised the caseworker that th ey
changed their minds and were no longer interested in being a placement option
for the child. The girlfriend expressed concerns about the father's behavior,
which the brother characterized as looking "psychotic," and the brother did not
want to expose his family to such behavior. And the girlfriend indicated that it
would not be in the best interest of the child to place him with them. The
caseworker conveyed concern that the paternal relatives waivered in their
willingness to be caretakers for the child. Indeed, at the end of January 2016,
A-5432-16T3
21
the paternal relatives were unwilling to supervise visits between defendants and
the child.
In March 2016, the Division informed the judge (at a permanency hearing)
that it was still assessing the paternal relatives as a possible placement option.
The Division required the paternal relatives to undergo bonding evaluations,
visitation with the child, and licensing. The Division required these things
because it was concerned that the paternal relatives consistently waivered on
their willingness to have the child placed with them.
At this point, the mother informed the Division she was no longer
interested in completing services, but instead, wanted the child placed with the
paternal relatives. 3 In January 2017, Dr. Lee advised that it would not be in the
best interest of the child to remove him from his resource parents. And around
this time, the girlfriend again expressed she was overwhelmed with the licensing
process. The Division then determined that it would not be in the best interest
of the child to place him with the paternal relatives.
In April 2017, the paternal relatives filed an application for custody of the
child. The judge conducted the FG trial over the course of ten days in May 2017.
3
In December 2016, the mother gave birth to a different child (who is not
involved in this appeal). The Division performed a Dodd removal as to that
child, placing the child in a different resource home.
A-5432-16T3
22
During the trial, the judge performed a best interest of the child analysis to
determine the outcome of the paternal relatives' private custody application. The
Division offered testimony from witnesses, who testified as to the history of the
Division's efforts to place the child with the paternal relatives, and the paternal
relatives' inconsistent responses. The paternal relatives also testified, although
the judge placed greater weight on the documentary evidence than their
testimony. Indeed, as the judge noted, the paternal relatives minimized a
domestic incident in January 2016 involving the father: "[t]heir testimony was
in clear contrast to the narrative that they presented to the Division," and the
incident led the paternal relatives to stop supervising visits with the child for ten
months. The judge found the Division's witnesses more credible than
defendants' testimony, especially after considering expert testimony. And the
judge significantly relied on the testimony from the experts for the Division and
Law Guardian (Dr. Lee and Dr. Gambone), rather than the experts for defendants
(Dr. Quintana and Dr. Gerald Figurelli).
Defendants contend that the paternal relatives requested that the Division
place the child with them in the early phases of the FN litigation. That never
occurred, and at the time the judge terminated the FN litigation, defendants did
not seek reconsideration or appellate review on that issue. Moreover, the
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paternal relatives declined to be a placement option during the fact finding
hearing. Although defendants argue that they desired placement of the child
with the paternal relatives throughout the FG case, the record demonstrates the
paternal relatives waivered, which led to the Division's concerns and subsequent
licensing process. Further, the judge rejected the paternal relatives' testimonies
that the Division delayed its placement evaluation and that the Division
misinformed them. It is clear to us that the Division ruled out the paternal
relatives because, as the judge found, it was not in the best interest of the child
to place him with them.
Finally, as to prong three, the father provides no support for his claim that
a Division caseworker told him that the Division would not bring the child for
the third phase of the LWC evaluation. On the contrary, the record shows a long
history in which the father failed to complete the LWC process. The judge found
the father's testimony was contradicted by the record and was not credible, and
this finding is entitled to deference. C.S., 367 N.J. Super. at 112. Given that
the father had to complete the LWC assessment for reunification to occur, and
failed to do so for more than two years, the judge was justified in rejecting the
claim that it was the Division's fault the father did not complete it.
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D.
The fourth prong of the best interests test requires a determination that the
termination of parental rights "will not do more harm than good." N.J.S.A.
30:4C-15.1(a)(4). The court must ask whether "after considering and balancing
the two relationships, the child will suffer a greater harm from the termination
of ties with [his] natural parents than from the permanent disruption of [his]
relationship with [his] foster parents." K.H.O, 161 N.J. at 355. This prong
"cannot require a showing that no harm will befall the child as a result of the
severing of biological ties." Ibid. "The overriding consideration under this
prong remains the child's need for permanency and stability." L.J.D., 428 N.J.
Super. at 491-92. "Ultimately, a child has a right to live in a stable, nurturing
environment and to have the psychological security that his most deeply formed
attachments will not be shattered." F.M., 211 N.J. at 453. "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." C.S., 367 N.J. Super. at 111.
As to the fourth prong, the judge credited Dr. Lee's and Dr. Quintana's
testimonies that the mother should not be the child's caretaker. And the judge
further credited Dr. Gambone's opinion that the child was dependent on the
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resource parents for protection, guidance, and nurturance. Dr. Gambone found
that the child responded to the resource parents, and he had a strong, positive,
consistent state of emotional security with them. Relying on this expert
testimony, the judge found the termination of parental rights would not cause
more harm than good.
The mother argues that the judge erroneously used a "comparative"
standard in his analysis rather than analyzing whether termination will not do
more harm than good. The mother contends that such a comparison ignores
social science on the detriments of separation and adoption. The judge relied
on the experts' conclusions that the mother, unlike the resource parents, was
incapable of caring for the child. That testimony was offered, not in support of
why placement in the resource home was better than placement in defendants'
home, but rather to show how the child would suffer if his relationship with the
resource parents was severed and he was returned to a caretaker who was unable
to meet his needs. Specifically, the judge credited Dr. Lee's and Dr. Gambone's
testimonies that removing him from the resource home created a risk that he
would suffer severe and enduring harm. The judge may rely on such opinions
to find that the Division met its burden under prong four. N.J. Div. of Child
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Prot. and Permanency v. P.D., 452 N.J. Super. 98, 122 (2017). Therefore, the
Division satisfied its burden on prong four as to defendants.4
Moreover, the judge found that Dr. Lee's recommendation focused on
permanency. Dr. Lee was concerned about various aspects of the child's life,
including the father's substance abuse history, criminal history, and his
entrenched and maladaptive personality and character traits. Dr. Lee
recommended that the father undergo a comprehensive substance abuse
evaluation, frequent random drug tests, anger management, individual therapy,
and sex offender treatment. But Dr. Lee recommended not delaying permanency
because in his opinion, the father had a poor prognosis for significant, lasting
change. Dr. Quintana similarly believed it was not in the child's best interest to
place him in the father's custody right away and, and although he recommended
that the father complete several services, Dr. Quintana stated that a long delay
of permanency would be a concern.
The father contends that there was no evidentiary support for the judge's
findings regarding his substance abuse history, criminal history, or maladaptive
personality traits. But he himself testified that, as an adult, he was convicted of
4
We note that the court appointed special advocate indicated that after an
August 10, 2018 visit, the child seemed to be a "very happy toddler," and that
the resource parents loved the child and wanted to adopt him.
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two criminal offenses and once violated parole, and he admitted using Suboxone
in 2015 to curtail his addiction to another drug. Both Dr. Lee and Dr. Quintana
found that the father had "maladaptive personality traits." Dr. Quintana also
noted that maladaptive behavioral patterns can be at times difficult to treat, and
that the father would need to undergo additional counseling to better deal with
his judgment, problem-solving, frustration tolerance, impulsive behavior, and
anger issues.
Finally, with respect to the father's claims about the resource parents'
fitness, the focus of prong four is not the resource parents' fitness, but "whether
the child will suffer a greater harm from the termination of ties with the natural
parent than from the permanent disruption of the child's relationship with the
foster parent[s]." N.J. Div. of Child Prot. & Permanency v. A.S.K., 457 N.J.
Super. 304, 329 (App. Div. 2017), aff'd o.b., 236 N.J. 429 (2019). Nevertheless,
the father's claims fail to account for expert testimony regarding the strength of
the child's ties with his resource parents as primary caretakers, which is the
paramount consideration under prong four.
III.
We reject the mother's argument, raised for the first time, that the judge
applied the wrong statutory standard by permitting the guardianship petition to
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proceed towards termination of parental rights. We apply a de novo standard
because her contention raises a legal question.
The Division withdrew its request for relief in its FN matter—brought
under N.J.S.A. 9:6-8.21—and at the same time, defendants stipulated they were
in need of services including substance abuse treatment, parenting classes, and
counseling. These services were necessary to ensure the health, safety, and
welfare of the child and a prerequisite to reunification. The judge found the
stipulations were credible and continued the Division's custody of the child
under N.J.S.A. 30:4C-12.
N.J.S.A. 30:4C-12 provides, in pertinent part, that a court may issue an
order granting the Division's request for care, supervision, and custody if the
Division established the child requires care and supervision "to ensure the health
and safety of the child" and "the best interests of the child so require[.]" In cases
brought under N.J.S.A. 30:4C-12, "the court applies the well-established
standard of the best interest of the child." N.J. Div. of Child Prot. & Permanency
v. M.C., 456 N.J. Super. 568, 584 (App. Div. 2018). But N.J.S.A. 30:4C-15
broadly allows the Division to initiate termination proceedings "as soon as an y
one of the circumstances in subsections (a) through (f)" of the statute "is
established." Relating to this case, subsection (c) pertains to "the best interests
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of [the] child," and subsection (d) pertains to when a parent "has failed for a
period of one year to remove the circumstances or conditions that led to
removal[.]" N.J.S.A. 30:4C-15(c), (f).
The mother contends that because defendants stipulated to the need for
services, the dismissal of the Title 9 action should have led the court to
adjudicate the Title 30 matter under N.J.S.A. 30:4C-15(d). She argues that the
statute applies to families in need of services to correct the circumstances that
led to a child's removal. Thus, the mother asserts that the judge should have
adjudicated the Title 30 matter under N.J.S.A. 30:4C-15(d), rather than under
the "best interest" factors of N.J.S.A. 30:4C-15(c) and N.J.S.A. 30:4C-15.1(a),
which apply to other guardianship proceedings. She argues that the judge erred
by considering only the "best interest" factors and not the "elements" of N.J.S.A.
30:4C-15(d), which include reasonable efforts to strengthen the parental
relationship and to assist defendants in eliminating the circumstances that led to
removal. Defendants also claim the judge lacked a "foundation for the four
prongs of the best interest test" because there were viable relatives willing to
adopt the child.
Although the Division's efforts to comply with its statutory obligations
are relevant considerations for a judge's assessment of the best interests factors
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at a guardianship trial, that has no effect on the Division's separate statutory
obligation to file a petition for the termination of the parental rights under
N.J.S.A. 30:4C-15(a) to (f). The plain language of N.J.S.A. 30:4C-15(f) directs
the Division, after obtaining custody, to bring an action to terminate parental
rights "as soon as any one of the circumstances in subsections (a) through (f)"
is established. The Division may initiate a petition to terminate parental rights
under N.J.S.A. 30:4C-15(c) if the four "best interests" prongs are met. N.J.S.A.
30:4C-15.1(a). The Division may move to terminate parental rights under
N.J.S.A. 30:4C-15(d) when "it appears that a parent or guardian . . . has failed
for a period of one year to remove the circumstances or conditions that led to
the removal or placement," despite the Division's "reasonable efforts . . . to
encourage and strengthen the parental relationship" and to "assist the parent or
guardian in remedying the conditions[.]" The Division met those conditions
here.
Once defendants stipulated to the Division's right to obtain custody, as
they were a family in need of services, "the Division is authorized to temporarily
remove children from the home of their parents or guardians to avert the child's
abuse and neglect . . . or when the child's best interests are not secured by their
parents who are in need of services[.]" N.J. Div. of Youth & Family Servs. v.
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D.P., 422 N.J. Super. 583, 593 (App. Div. 2011). In its guardianship complaint,
filed on May 3, 2016, more than one year after the Dodd removal, the Division
alleged it was in the child's best interest to be placed in its custody, setting forth
the grounds under N.J.S.A. 30:4C-15(c). The complaint also alleged that despite
the Division's reasonable efforts, defendants were unwilling or unable to
eliminate the harm that led to the child's removal within one year, as set forth in
N.J.S.A. 30:4C-15(d). The Division alleged that because defendants failed to
make a permanent plan for the child or to engage in recommended services,
returning the child to defendants' care would expose him to an unacceptable risk
of harm.
Upon filing the FG complaint and seeking to terminate defendants'
parental rights, the four prongs of N.J.S.A. 30:4C-15.1(a) provide the
"integrated multi-element test that must be applied to determine whether
termination of parental rights is in the best interests of the child." D.M.H., 161
N.J. at 375. The statutory scheme provides no safe harbor, or alternative track,
when FG complaints for guardianship involve a family in need of services under
N.J.S.A. 30:4C-12. Because the Division's petition alleged sufficient grounds
that justified moving for termination of parental rights under N.J.S.A. 30:4C-
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15(c) and (d), the Division correctly moved towards terminating defendants'
parental rights.
IV.
Defendants argue the judge erroneously allowed testimony from Dr. Lee,
limited their experts' testimonies and excluded Facebook posts from the resource
father. We review these contentions for abuse of discretion. N.J. Div. of Child
Prot. & Permanency v. N.T., 445 N.J. Super. 478, 492 (App. Div. 2016). We
reverse discretionary determinations, as with all rulings on the admissibility of
evidence, only "when the trial judge's ruling was 'so wide of[f] the mark that a
manifest denial of justice resulted.'" N.J. Div. of Youth & Family Servs. v.
M.G., 427 N.J. Super. 154, 172 (App. Div. 2012) (quoting State v. Carter, 91
N.J. 86, 106 (1982)).
As to Dr. Lee, the judge admitted him as an expert in clinical and forensic
psychology. The judge found that there was ample basis for Dr. Lee's opinions,
even if the judge were to "discount all of the formalized testing measures,"
including the Rorschach test. The judge acknowledged that defendants' experts
expressed concerns about "how the scoring was done" on the Rorschach test in
Dr. Lee's report, but he discounted these concerns because the defense experts
did not "provide testimony that the test itself yielded unfounded results ."
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The general non-exhaustive factors for a judge to consider in deciding
whether expert testimony should be permitted include:
1) Whether the scientific theory can be, or at any time
has been, tested;
2) Whether the scientific theory has been subjected to
peer review and publication, noting that publication is
one form of peer review but is not a "sine qua non";
3) Whether there is any known or potential rate of error
and whether there exist any standards for maintaining
or controlling the technique's operation; and
4) Whether there does exist a general acceptance in the
scientific community about the scientific theory.
[In re Accutane, 234 N.J. 340, 398 (2018).]
These standards apply in Family Part proceedings. N.J. Div. of Child Prot. &
Permanency v. V.F., 457 N.J. Super. 525, 535 (App. Div. 2019).
"'[T]he admissibility of scientific evidence may turn not only on its
reliability but the purpose for which it is offered.'" N.J. Div. of Child Prot. &
Permanency v. I.B., 441 N.J. Super. 585, 596 (App. Div. 2015) (quoting State
v. Hines, 303 N.J. Super. 311, 318 n. 1 (App. Div. 1997)). "'[T]he usefulness of
expert testimony depends in part on the context in which it is offered. Testimony
may be more helpful than prejudicial in one context, because it is being used for
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34
a limited purpose or because the factfinder knows its limitations.'" Ibid.
(quoting Hines, 303 N.J. Super. at 526 n. 8).
Where the Division seeks to terminate parental rights due to "potential
harm to the child based on separation from a foster parent with whom the child
has bonded," the proofs "should include the testimony of a well[-]qualified
expert[.]" J.C., 129 N.J. at 18-19. "Family Part judges regularly qualify experts
in psychology and psychiatry and hear the opinion testimony those experts offer
in a variety of contexts." I.B., 441 N.J. Super. at 596. Because of their "special
expertise" in ensuring the welfare of children, Family Part judges "are more than
capable of evaluating the opinions of experts and understanding the limitations
of behavioral science testimony in a way untrained jurors may not." Ibid. "[S]o
long as the proffered testimony meets the requirements of N.J.R.E. 702," the
court's evaluation of expert testimony "should be directed to the weight and not
the admissibility of the testimony." Id. at 596-97.
The judge relied on Dr. Lee's sufficient foundation to find the results of
the Rorschach test scientifically reliable. Specifically, the results were found
valid and scientifically reliable in multiple prior cases, and Dr. Lee taught a
university course on how to administer the test. Although defendants' experts
testified that they could not tell from Dr. Lee's report what he was relying on
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when scoring the results of the Rorschach test, these concerns went to the weight
of the testimony, not its admissibility. I.B., 441 N.J. Super. at 596-97.
Moreover, Dr. Lee noted that his testing was not in isolation, but "in the
context of other data," such as from interviews with defendants and reviews of
the collateral history. The judge noted that Dr. Lee's conclusions were informed
by "significant collateral data," including defendants' interviews with Dr. Lee,
and their failure to engage in court-ordered services. This led the judge to
"discount" the formalized testing measures that Dr. Lee used, and for the judge
to find that the Division satisfied its statutory burden. Furthermore, even Dr.
Quintana⸺the father's expert⸺testified that he did not support reunification
with the child.
Finally, the judge correctly recognized that the Rorschach test results
related mainly to Dr. Lee's psychological assessments of defendants and had no
bearing on Dr. Lee's bonding evaluations, which were critical to Dr. Lee's
conclusion that severing the child's relationship with his resource family posed
a "significant risk of the child suffering severe and enduring psychological or
emotional harm." The judge relied on this conclusion to analyze the "best
interests" prongs of N.J.S.A. 30:4C-15.1(a).
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As to Dr. Quintana, in the midst of the guardianship trial, and on the date
of a scheduled sibling visit at the paternal relatives' home, defendants arranged
for him to conduct a second bonding evaluation of the child with the paternal
relatives. The judge excluded Dr. Quintana's supplemental report and testimony
regarding that mid-trial bonding evaluation. The judge excluded the
supplemental report and testimony on fundamental fairness grounds, finding that
defendants had "a design to mislead" and conceal the bonding evaluation from
the Division and the Law Guardian, who were surprised the evaluation occurred.
The judge also concluded it would be prejudicial to permit a second round of
bonding evaluations during the trial.
"[A] trial judge has the discretion to preclude expert testimony on a
subject not covered in the written reports furnished in discovery." Ratner v.
Gen. Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990); accord Anderson
v. A.J. Friedman Supply Co., 416 N.J. Super. 46, 72 (App. Div. 2010). "Expert
testimony that deviates from the pretrial expert report may be excluded if the
court finds 'the presence of surprise and prejudice to the objecting party.'"
Conrad v. Robbi, 341 N.J. Super. 424, 440 (App. Div. 2001) (quoting Velazquez
ex rel. Velazquez v. Portadin, 321 N.J. Super. 558, 576 (App. Div. 1999)). Dr.
Quintana's excluded supplemental report mainly reinforced his earlier testimony
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from his December 2016 bonding evaluations; therefore it was doubtful the
report "would have been a heavy weight in the evidential balance," had the court
considered it. Ratner, 241 N.J. Super. at 203.
As to the Facebook posts, we see no abuse of discretion. The judge noted
that the posts pertained to the resource parents and were obtained through
unsuccessful mediation efforts. The judge therefore struck the social media
pages from the record.
To the extent that we have not addressed the parties' remaining arguments,
we conclude that they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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