DCPP VS. H.H. AND C.R., IN THE MATTER OF THE GUARDIANSHIP OF K.H., J.H. AND D.H. (FG-12-0094-15, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4736-15T2

A-4739-15T2

NEW JERSEY DIVISION

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

H.H. and C.R.,

Defendants-Appellants.

___________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

K.H., J.H., and D.H.,

Minors.

____________________________

Submitted May 4, 2020 – Decided July 13, 2020

Before Judges Messano and Vernoia.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex County,

Docket No. FG-12-0094-15.

Joseph E. Krakora, Public Defender, attorney for

appellant H.H. (Robyn A. Veasey, Deputy Public

Defender, of counsel; Laura Orriols, Designated

Counsel on the briefs).

Joseph E. Krakora, Public Defender, attorney for

appellant C.R. (Robyn A. Veasey, Deputy Public

Defender, of counsel; Christine Olexa Saginor,

Designated Counsel, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for

respondent (Melissa Dutton Schaffer and Donna Sue

Arons, Assistant Attorney Generals, of counsel; Joshua

Paul Bohn, Deputy Attorney General, on the briefs).

Joseph E. Krakora, Public Defender, Law Guardian,

attorney for minors D.H. and J.H. (Meredith Alexis

Pollack, Assistant Deputy Public Defender, of counsel;

James Joseph Gross, Designated Counsel, on the

briefs).

Joseph E. Krakora, Public Defender, Law Guardian,

attorney for minor K.H. (Meredith Alexis Pollack,

Assistant Deputy Public Defender, of counsel; Todd S.

Wilson, Designated Counsel, on the briefs).

PER CURIAM

Following trial, the Family Part entered its May 5, 2016 judgment of

guardianship terminating the parental rights of defendants, H.H. (Harry) and

C.R. (Carmela), to their three children, D.H. (Debbie), born January 2003, J.H.

A-4736-15T2

2

(Jack), born August 2005, and K.H. (Kathy), born July 2007. 1 Defendants

moved for reconsideration, which the judge denied.

Defendants appealed, arguing the Division of Child Protection and

Permanency (the Division) failed to produce clear and convincing evidence

satisfying all four prongs of the statutory best-interests-of-the-child test,

N.J.S.A. 30:4C-15.1(a)(1)-(4). In addition, Harry contended the judge

mistakenly admitted, over his objection, certain Division evaluation reports,

because she concluded the Division's expert psychologist, Dr. Barry Katz, relied

upon them in rendering his opinions at trial. Harry asserted the judge's mistaken

conclusion about the bases for the expert's opinions rendered Dr. Katz's opinions

unworthy of belief. The children's Law Guardian specifically joined in

challenging the sufficiency of the prong three and four evidence and urged us to

reverse the judgment.

While the appeal was pending, the resource parent, who at the time of trial

had indicated a willingness to adopt all three children, changed her mind as to

Debbie and Jack, both of whom had displayed serious behavioral problems in

the interim. Defendants moved before us to summarily reverse the judgment of

1

We use pseudonyms and initials throughout the opinion pursuant to Rule 1:38-

3(d)(12).

A-4736-15T2

3

guardianship, or, in the alternative, for a limited remand to the Family Part to

consider a motion to vacate the judgment pursuant to Rule 4:50-1 based upon

this change in circumstances. We granted the alternate relief and stayed

appellate proceedings pending defendants filing motions in the Family Part to

vacate the judgment, which they did.

A different judge heard oral argument on the motions. In a comprehensive

oral opinion outlining the parties' arguments and the developments since entry

of the judgment, the judge noted that Debbie and Jack now had "no reasonable

prospects of being adopted into the same home." She decided to reopen the

guardianship docket based on "newly discovered evidence[,]" and, in granting

what she characterized as "relatively narrow" relief, the judge allowed Dr. Katz

"the opportunity to review the newly discovered information and determine if

this change in circumstances would affect his opinion as it was presented to the

[t]rial [c]ourt." The judge denied defendants' other requests for new bonding

evaluations and to vacate the judgment and grant them visitation.

Dr. Katz's initial supplemental report indicated a need to conduct further

evaluations, and the judge subsequently entered orders permitting them. She

continued to deny, however, defendants' requests for new bonding evaluations.

A-4736-15T2

4

The judge granted the Law Guardian's motion to hold a plenary hearing, which

was conducted over four non-consecutive days between April and July 2018. 2

On September 21, 2018, the judge entered an order granting defendants'

motion to vacate the judgment of guardianship as to Debbie and Jack, but she

denied the motion as to Kathy. Defendants filed amended notices of appeal

seeking review of this order. The Division did not file a cross-appeal. As a

result, we only consider the arguments raised by defendants as to the termination

of their parental rights to Kathy.

In addition to the points on appeal he originally raised, Henry now

contends the remand judge erred by limiting the development of a full record

regarding potential reunification with Kathy, while at the same time concluding

that reunification with Debbie and Jack was possible. He also argues that this

limitation on the scope of the remand hearing, along with the Division's bad

faith during trial, denied him due process. Carmela reasserts her arguments

regarding the insufficiency of the evidence supporting termination. She also

contends that the remand judge misapplied the Court's holding in In re

Guardianship of J.N.H., 172 N.J. 440 (2002), regarding a Rule 4:50-1 motion to

2

Recognizing a potential conflict between Kathy's interests and those of her

siblings, the judge wisely appointed a different Law Guardian to represent

Kathy.

A-4736-15T2

5

vacate, and the judge erroneously focused her attention on whether the initial

judgment was correct, rather than whether it remained fair and equitable under

the changed circumstances.

The Division asserts that the trial evidence satisfied its burden of proof as

to all four prongs of the statutory test, and that the additional evidence on remand

continued to support the judgment of guardianship. Kathy's Law Guardian's

supplemental brief urges us to affirm the judgment.

We have considered these arguments and affirm.

I.

Caseworkers assigned to the family testified at trial about the long history

of the Division's involvement with defendants, who were never married, and, at

the time of trial, were married to other people. The caseworkers detailed much

of the documentary evidence, which included past substantiated and

unsubstantiated referrals for domestic violence and substance and alcohol abuse.

Defendants' compliance with services was sporadic at best. The children had

been twice removed from defendants and returned in attempted reunification

prior to the 2014 removal that led to the guardianship trial.

In January 2013, Harry was convicted of an unrelated incident of

aggravated assault and sentenced to a three-year term of imprisonment; the

A-4736-15T2

6

Division supplied him with services during his incarceration and arranged for

his monthly visitation with the children. Harry attended mental health and drug

treatment after his release from prison in 2015, but his participation became

sporadic. His case was closed in September 2015 after Harry threatened to blow

up a Division office.

In early April 2014, the Division effected an emergency removal of the

children after Carmela struck a pole in the middle of the night while driving

under the influence; she had left the children home alone. Carmela's attendance

at substance abuse counseling thereafter was inconsistent.

Initially, all three children were placed in the same resource home.

Shortly thereafter, however, the Division placed Jack with a different family

because the original resource home did not have a separate room for him and

was licensed for only two children of school age. The Division's plan was to

have the two girls adopted by the resource family, and for Jack to be adopted by

them as well if the required changes could be made to the home. If not, the

Division intended to seek a select home adoption for Jack, who had begun

displaying significant behavioral problems.

Dr. Katz testified at trial and rendered opinions reached after he conducted

evaluations of both defendants and bonding evaluations between each defendant

A-4736-15T2

7

and the children. Based on his testing, Dr. Katz concluded that Harry met

diagnostic criteria consistent with bipolar disorder, "with numerous other

dysfunctional character logical (sic) traits." Dr. Katz noted Harry's "extensive

criminal history[,]" which included violent assaults against men and women, and

that he had been incarcerated twice for assault. Harry admitted to Dr. Katz that

he had threatened Carmela and her mother, E.R., and had violated domestic

violence restraining orders entered against him. Dr. Katz testified that while the

children recognized Harry as their father, "that perception was based more upon

fantasy than reality." So, too, was Harry's stated plan to become a "bounty

hunter[,]" given the numerous arrests in his past.

Based on his testing, Dr. Katz found that Carmela had a "pervasive

compulsive personality disorder with histrionic features[.]" She minimized her

problems by denying any alcohol abuse and offered inconsistent versions of why

the children were removed. Carmela told Dr. Katz that Harry was physically

and emotionally abusive towards her in front of the children, and the doctor

described their relationship as co-dependent and violent. With respect to

Carmela's bonding evaluation, Dr. Katz testified that the children, particularly

Debbie, exhibited a "conflict[ed]" attitude towards her mother, and Carmela

displayed frustration at times in dealing with the children. Dr. Katz concluded

A-4736-15T2

8

that defendants were unable to parent the children, and that the children would

be at risk of abuse and neglect if returned to defendants' care.

Dr. Katz also conducted a bonding evaluation between Debbie and Kathy

and their resource parents. Dr. Katz conducted no bonding evaluation as to Jack,

who was not in a potential adoptive placement at the time. Dr. Katz concluded

that Debbie and Kathy had a "secure bond and stable attachment" to the resource

parents and relied on the resource parents to meet their needs. According to Dr.

Katz, the girls would suffer trauma if removed from the resource parents, and

neither defendant was able to mitigate that trauma. Moreover, Dr. Katz believed

there would be serious and enduring harm to all the children if they were

returned to defendants. He testified that the resource parents were willing to

have Jack live with them and were looking to expand their house to

accommodate him. Dr. Katz recommended that if Jack's adoption by the

resource parents were not possible, select home adoption was the best

alternative.

The trial judge questioned Debbie, then thirteen years' old, in camera.

Debbie wanted to live with Harry, claimed to have a good relationship with C.H.

(Cindy), who married Harry in 2012, and Debbie did not want to be adopted.

She acknowledged having a tumultuous relationship with Carmela.

A-4736-15T2

9

Harry called Cindy as a witness at trial. At the time, she was living in

North Carolina, tending to her ill mother, but said she intended at some point to

move back to New Jersey. Cindy had five children of her own and said she had

a strong relationship with Debbie, Jack and Kathy, even though she

acknowledged having spent little more than one week with them together with

Harry. Harry had offered Cindy as a possible placement for the children.

However, one caseworker testified the Division could not process that request

because of a 1998 referral involving Cindy and her ex-husband. Cindy testified

that it involved her ex-husband's physical abuse of one of their children and was

ruled unsubstantiated.

Harry also called Jack's resource parent, with whom Jack had been living

for about four months, and Debbie's and Kathy's resource parent. Both

defendants testified on their own behalf.

Additionally, Dr. Jason Fleming, a clinical psychologist, offered expert

testimony on behalf of Carmela, who, the doctor observed, was "really trying"

and was "very attentive" to the children. Dr. Fleming asserted that there was a

"healthy, positive and secure attachment" between Carmela and the children,

and that they would suffer harm if Carmela's parental rights were terminated.

However, Dr. Fleming agreed with Dr. Katz that Carmela was presently unable

A-4736-15T2

10

to successfully parent the children on her own, and he suggested that Carmela

"co-parent" the children with her mother, E.R.

The trial judge filed a written opinion containing her findings and

conclusions in support of the judgment of guardianship. We discuss them below

and turn now to the evidence adduced at the remand hearing.

By March 2017, the Division had removed Debbie from her resource

family home; Jack still had not been placed in a pre-adoptive home. Both

children's behavioral and mental health had deteriorated, resulting in multiple

placements, and, in Debbie's case, entry into an inpatient mental health facility

and placement in a shelter. Upon receipt of our order, the remand judge initially

ordered Dr. Katz to supplement his prior evaluations by considering this new

information and to address whether it affected his prior opinions. The doctor's

supplemental report acknowledged concerns about Debbie's and Jack's lack of

permanent placement and the absence of any siblings in Kathy's resource home.

However, as already noted, he could not make any recommendations without

further information, which led to the judge's subsequently ordered evaluations.

Dr. Katz psychologically evaluated both defendants and Carmela's

husband, B.B. (Bob). Dr. Katz testified before the remand judge that Carmela

and her husband were living in E.R.'s basement, Carmela was unemployed, and

A-4736-15T2

11

she had stopped taking her prescribed medications for treatment of depression,

anxiety, post-traumatic stress disorder and bipolar disorder. Dr. Katz noticed

the strong smell of alcohol on Carmela's breath during the interview, even

though she denied having any. Dr. Katz reiterated his opinion offered at trial,

i.e., that Carmela was unable to effectively parent the children.

As for Bob, Dr. Katz noted he, too, emanated the odor of alcohol, although

Bob asserted he had been sober for many months. The doctor noted Bob's

"extensive psychiatric history with long-term psychiatric hospitalizations," his

low-level empathy toward children, and his lack of prior experience as a parent.

Dr. Katz concluded that together, Carmela and Bob could not effectively parent

the children, particularly Debbie and Jack who needed intensive monitoring and

supervision. Dr. Katz continued to support termination of Carmela's parental

rights.

Dr. Katz found no improvement in Harry's mental health or behaviors and

expressed concern that Harry was not receiving treatment. Dr. Katz's initial

opinions about Harry's lack of ability to parent had "become strengthened," and

he opined that no one, including Cindy, had the capacity to curtail those

behaviors and reduce Harry's risk to others. Dr. Katz testified that Debbie and

Jack had exhibited deteriorating behavior, and he opined that Harry would be

A-4736-15T2

12

unable to deal with the children. The doctor conceded that interviewing the

children would have provided him with the best data, but he did not do so.

The remand judge also considered the expert testimony of Dr. Donald

Franklin, a psychologist who evaluated Cindy and Harry and testified on Harry's

behalf. Dr. Franklin confirmed that Harry was suffering from bipolar disorder

and that he needed to be in treatment indefinitely. However, Dr. Franklin opined

that Harry and Cindy were in a positive relationship, which they had maintained

for several years. Dr. Franklin could not give an opinion as to whether Harry

would be able to parent the children with Cindy because he had not done an

assessment of the children to determine the severity of their problems. Thus,

Dr. Franklin said that the "jury [wa]s out" as to whether Harry can care for the

children.

Dr. Fleming testified again on behalf of Carmela regarding his

psychological evaluation of her and Bob. 3 He concluded that Carmela was

significantly more stable but needed to better address her depression, anxiety

and low self-esteem. Dr. Fleming believed that together with her husband and

mother, Carmela could co-parent the children effectively.

3

Dr. Fleming included Carmela's mother, E.R., in his evaluation. The

Division's supplemental brief asserts E.R. has since passed away.

A-4736-15T2

13

Kathy's Law Guardian produced Dr. Elizabeth Smith as an expert witness

in psychology.4 Dr. Smith evaluated Kathy and concluded she was "thriving

with limited contact with her siblings[ and] . . . with no contact with her

biological parents, for two years." Kathy told Dr. Smith that living with her

resource parents and her pets made her happy; what made her scared was going

back to her biological parents or being again placed in foster care. Dr. Smith

also interviewed Kathy's resource mother, who the doctor opined was

appropriately fulfilling Kathy's needs.

In a comprehensive oral opinion, the remand judge reviewed the hearing

evidence and the evidence supporting termination as found by the trial judge.

The judge concluded that the change in Debbie's and Jack's circumstances would

have altered the analysis regarding the prong four proof at trial. Neither child

now had a reasonable prospect for long-term placement or adoption. The judge

vacated the judgment terminating defendants' parental rights to Debbie and Jack,

ordered therapeutic visitation between defendants and the two children, and

returned the litigation to the FN docket.

4

Early in the remand proceedings, the judge appointed a separate Law Guardian

to represent Kathy, while the original Law Guardian continued to represent

Debbie and Jack.

A-4736-15T2

14

However, as to Kathy, the judge concluded the child was "thriving," hoped

to be adopted, and was fearful of reuniting with defendants. The judge

explained:

[S]he stands in a totally different position than both

[Debbie] and [Jack]. And that standard of [Rule] 4:50

that the change in circumstances would alter [the trial

judge's] decision hasn't been met. . . . [T]herefore, I

believe the motion regarding [Kathy] should not be

granted and that the judgment regarding . . . the parent's

termination to [Kathy] should stand.

The judge entered an order denying the motion to vacate the judgment of

guardianship as to Kathy.

II.

We first consider whether the trial evidence supported the entry of the

judgment of guardianship. To terminate parental rights, the Division must prove

by clear and convincing evidence:

(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;

A-4736-15T2

15

(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.

[N.J.S.A. 30:4C-15.1(a); see also In re Guardianship of

K.H.O., 161 N.J. 337, 347–48 (1999).]

"The focus of a termination-of-parental-rights hearing is the best interests of the

child." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012)

(citing N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 110 (2011)).

The four statutory prongs "are neither discrete nor separate. They overlap to

provide a composite picture of what may be necessary to advance the best

interests of the children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.

261, 280 (2007) (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.

Super. 235, 258 (App. Div. 2005)).

Our standard of review is limited. We must uphold the trial court's

findings if "supported by adequate, substantial, and credible evidence." N.J.

Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citing N.J.

Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We defer to

the judge's factual findings because she had "the opportunity to make first -hand

A-4736-15T2

16

credibility judgments about the witnesses . . . [and] ha[d] a 'feel of the case' that

can never be realized by a review of the cold record." E.P., 196 N.J. at 104

(quoting M.M., 189 N.J. at 293). We accord even greater deference to the

Family Part's factual findings because of its "special jurisdiction and expertise

in family matters[.]" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.

328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Only

when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'

should an appellate court intervene and make its own findings to ensure that

there is not a denial of justice." E.P., 196 N.J. at 104 (quoting N.J. Div. of Youth

& Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

A.

After the close of trial, the judge issued a written statement of reasons for

admitting into evidence several documents offered by the Division over

defendants' objection. These were psychological evaluations of defendants

performed at the Division's behest years prior to the 2014 removal of the

children. The judge found the exhibits were admissible because Dr. Katz relied

upon them in completing his reports "pursuant to [N.J.R.E.] 803(c)(6)[.]" At

trial, Dr. Katz did not cite the exhibits during his testimony as documents he

relied on in rendering his opinions.

A-4736-15T2

17

As we understand his argument, Harry claims that the judge erred in

admitting the documents because she mistakenly found that Dr. Katz had relied

on them when he had not. And, even had Dr. Katz relied on them, the exhibits

were inadmissible hearsay. Harry contends this undermines the judge's reliance

on Dr. Katz's opinions in finding the Division carried its burden of proof.

"We grant substantial deference to the trial judge's discretion on

evidentiary rulings[] and will only reverse when the trial judge's ruling was 'so

wide of 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)) (citations omitted). "However, no

deference is accorded when the court fails to properly analyze the admissibility

of the proffered evidence." E&H Steel Corp. v. PSEG Fossil, LLC, 455 N.J.

Super. 12, 25 (App. Div. 2018) (citing Konop v. Rosen, 425 N.J. Super. 391,

401 (App. Div. 2012)).

Initially, Harry's claim that the judge mistakenly believed Dr. Katz relied

on the exhibits is not entirely accurate. The doctor mentioned two of the exhibits

in his reports, which were also admitted into evidence at trial without objection.

"[U]nder N.J.R.E. 703, an expert may give the reasons for his opinion and

the sources on which he relies, but that testimony [cannot] establish the

A-4736-15T2

18

substance of the report of a non-testifying [expert]." Agha v. Feiner, 198 N.J.

50, 64 (2009) (citing Day v. Lorenc, 296 N.J. Super 262, 267 (App. Div. 1996)).

The "expert testimony [at trial cannot] serve as 'a vehicle for the wholesale

[introduction] of otherwise inadmissible evidence.'" Id. at 63 (second alteration

in original) (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 480–81 (App.

Div. 2002)). Therefore, pursuant to N.J.R.E. 703, it was error to admit the

exhibits into evidence because of any actual or perceived reliance by Dr. Katz.

However, "Rule 5:12-4(d) permits the Division to introduce 'reports by

staff personnel or professional consultants' into evidence provided the

documents satisfy the requirements of the business records exception, N.J.R.E.

803(c)(6) and 801(d)." M.G., 427 N.J. Super. at 173 (citing N.J. Div. of Youth

& Family Servs. v. B.M., 413 N.J. Super. 118, 129 (App. Div. 2010)). "[E]xpert

conclusions or diagnoses within such reports are subject to a further

admissibility determination under N.J.R.E. 808." N.J. Div. of Child Prot. &

Permanency v. A.D., 455 N.J. Super. 144, 158 (App. Div. 2018) (citing M.G.,

427 N.J. Super. at 173). Although the exhibits were admissible as business

records, the judge failed to redact those portions that contained complex

psychological diagnosis and opinions. See, A.D., 455 N.J. Super. at 158.

A-4736-15T2

19

Nevertheless, nothing in the judge's written decision supporting the

judgment of guardianship demonstrates she relied on the disputed exhibits, or

that her findings and conclusions regarding Dr. Katz's testimony had anything

to do with whether the expert relied upon the disputed evidence. As such, any

error in failing to redact included hearsay within the exhibits was harmless. R.

2:10-2.

B.

Turning to defendants' substantive arguments as to the first prong of the

statutory test, Carmela contends the Division failed to prove that she had harmed

the children or subjected them to a substantial risk of harm. Harry argues that

the Division relied on evidence beyond the allegations pled in its complaint, the

judge failed to distinguish between the actions of each parent, and the judge

erroneously found the risk of future harm without support in the record.

Pursuant to the first prong of the statute, the Division must establish "[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). "[T]he Division

must prove harm that 'threatens the child's health and will likely have continuing

deleterious effects on the child.'" N.J. Div. of Youth & Family Servs. v. A.L.,

213 N.J. 1, 25 (2013) (quoting K.H.O., 161 N.J. at 352). The focus is not on a

A-4736-15T2

20

single or isolated harm, but 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. The Division need not "wait 'until a child is actually irreparably impaired

by parental inattention or neglect.'" F.M., 211 N.J. at 449 (quoting In re

Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).

The trial judge found that Carmela's continued failure to abstain from drug

and alcohol use endangered the children. The judge credited Dr. Katz's

opinions, particularly regarding Carmela's mental stability and ability to parent

in the future. The judge accepted Dr. Katz's conclusions about Harry's violent

past and the likelihood of future aggressive or violent conduct that would put

the children at risk.

Carmela contends that evidence of her intractable substance abuse was

insufficient proof under prong one; however, the judge did not rely solely upon

that finding. The judge cited the reason for the children's removal, i.e.,

Carmela's DWI that occurred late at night after she left the children alone,

Carmela's mental health, and the opinions of both Dr. Katz and Dr. Fleming that

she was unable to parent the children on her own in the foreseeable future.

Harry incorrectly argues that the judge relied on his incarceration as proof

of harm; she did not. We reject out of hand Harry's claim that the judge

A-4736-15T2

21

conflated Carmela's conduct with his and failed to separately assess the

Division's proofs as to whether he harmed the children or posed the risk of future

harm. The judge's opinion repeatedly discusses Harry's conduct and diagnoses,

both in the context of the family unit and otherwise. To the extent we have not

addressed defendants' other arguments regarding the prong one evidence, they

lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

C.

Under N.J.S.A. 30:4C-15.1(a)(2), "the inquiry centers on whether the

parent is able to remove the danger facing the child." F.M., 211 N.J. at 451

(citing K.H.O., 161 N.J. at 352). "Prong two may also be satisfied if 'the child

will suffer substantially from a lack of . . . a permanent placement and from the

disruption of [the] bond with foster parents[.]'" Ibid. (first alteration in original)

(quoting K.H.O., 161 N.J. at 363); see also N.J. Div. of Youth & Family Servs.

v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004) ("[T]he . . . statute[] reflect[s]

reforms acknowledging the need for permanency of placements by placing limits

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

with the child.").

As to the second prong, the trial judge concluded that despite having

received services from the Division for years, both defendants were "unwilling

A-4736-15T2

22

or unable to correct the harm that led to the children's removal." The judge

credited the testimony of Dr. Katz, "that both parents were unable to parent the

children now or in the foreseeable future due to a pattern of behavior that began

with the first contact the Division made with the parents in 2003." She noted

Dr. Fleming's "same determinations" regarding Carmela. The judge also found

that neither parent had the financial ability to provide a stable and safe home for

the children. "Based upon the totality of the credible evidence and Dr. Katz'[s]

expert opinion," the judge concluded "the Division ha[d] proven by clear and

convincing evidence that the defendants are unable or unwilling to eliminate the

harm to the children and delaying the permanent placement will add to the

harm."

Carmela argues that by the time of trial, she was working, had her own

home apart from Harry, and was compliant with the Division's services. Harry

contends the judge once again conflated the evidence against Carmela in

considering the Division's proofs against him on prong two, and that there was

no substantial credible evidence that he was unwilling or unable to prevent any

future harm to the children. We again disagree.

Carmela's history of past drug and alcohol abuse was undisputed, and her

inability to address the issues is beyond cavil. Even Dr. Fleming concluded that

A-4736-15T2

23

any progress she had made needed to be tempered with a recognition of her

serious mental health issues and the likelihood that she could not parent the

children without the help of others.

Harry points to positive developments in his employment and housing at

the time of trial. However, they were speculative at best. The judge fairly

considered the evidence against Harry, including his intractable violent behavior

toward Carmela and others, as well as his unwillingness to abide by prior

restraining orders entered against him. In short, the prong two evidence was

clear and convincing.

D.

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[.]" However, "[e]xperience tells us

that even [the Division's] best efforts may not be sufficient to salvage a parental

relationship." F.M., 211 N.J. at 452. Moreover, "[e]ven if the Division ha[s]

been deficient in the services offered to" a parent, reversal is not necessarily

"warranted, because the best interests of the child controls[]" the ultimate

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determination. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576,

621 (App. Div. 2007).

Although N.J.S.A. 30:4C-12.1(a) requires the Division to search for and

assess potential relatives as placement resources, it "may decide to pursue the

termination of parental rights if [it] determines that termination of parental rights

is in the child's best interests." N.J.S.A. 30:4C-12.1(c); see also N.J. Div. of

Child Prot. & Permanency v. C.S., 432 N.J. Super. 224, 229 (App. Div. 2013)

(noting that under subsection (c), the child's best interests is always the

"polestar").

In her written opinion, the trial judge discussed the services provided to

defendants over the Division's long history with the family. The judge

acknowledged that the Division "could have done more to ascertain [Cindy's]

qualifications to be a resource parent," but found that she and Harry had no

"marital relationship[,]" since Cindy was living in North Carolina and had no

"real relationship with the children." The judge also noted that other people

Harry referred to the Division as possible resource placements never filed an

application.

Both defendants argue the Division failed to consider alternatives to

termination of their parental rights, and Harry additionally contends the Division

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failed to provide adequate services focused on reunification. We reject the

arguments.

Without any authority, Harry seemingly contends that consideration of

services the Division provided prior to the 2014 removal was irrelevant because

they were not provided for the purposes of reunification after 2014. He cites no

authority for this proposition, but, more importantly, the argument fails to

recognize the importance of the two prior removals and failed attempts at

reunification, which amply supported the judge's finding as to the adequacy of

the Division's services. We also reject Harry's claim that the Division abdicated

its obligations because he was incarcerated. The record does not support the

contention.

Defendants' argument that the Division failed to consider other relatives

for placement is also unpersuasive. The judge noted that the Division could

have done more to clarify whether the referral in Cindy's past was against her

husband, as she claimed, and the circumstances that resulted in the Division's

alleged involvement at that time. Harry argues the judge's failure to require the

Division to produce any and all of its records from the 1998 referral, despite his

counsel's repeated requests, equates to a failure of proof as to prong three.

However, the judge explained the reasons why Cindy was not a realistic

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placement alternative. She was living in North Carolina, had no established date

for her return to New Jersey, and had never lived for more than a total of ten

days with Harry and the children together.

We also reject Carmela's claims that the Division failed to consider

adequately her mother as a placement resource. The testimony at trial indicated

that E.R. did not offer herself as a placement resource. To the extent we have

not specifically addressed defendants' other contentions, they lack sufficient

merit to warrant discussion. R. 2:11-3(e)(1)(E).

E.

Prong four requires the Division to prove "[t]ermination of parental rights

will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). It "serves as a

fail-safe against termination even where the remaining standards have been

met." G.L., 191 N.J. at 609. "The question ultimately is not whether a biological

mother or father is a worthy parent, but whether a child's interest will best be

served by completely terminating the child's relationship with th[e] parent."

E.P., 196 N.J. at 108.

As the Court has explained, "[t]o determine whether the comparative harm

is proscribed by the fourth prong in a case involving a child in foster care, . . .

the court must inquire into the child's relationship both with [its] biological

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parents and [its] foster parents." N.J. Div. of Youth & Family Servs. v. I.S., 202

N.J. 145, 181 (2010) (alterations in original) (quoting K.H.O., 161 N.J. at 355).

Typically, "the [Division] should offer testimony of a well[-]qualified expert

who has had full opportunity to make a comprehensive, objective, and informed

evaluation of the child's relationship with both the natural parents and the foster

parents." F.M., 211 N.J. at 453 (quoting M.M., 189 N.J. at 281).

However, "courts have recognized that terminating parental rights without

any compensating benefit, such as adoption, may do great harm to a child." E.P.,

196 N.J. at 109 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.

591, 610–11 (1986)). "Such harm may occur when a child is cycled through

multiple foster homes after a parent's rights are severed." Ibid.

The trial judge credited Dr. Katz's testimony that the children had no

appreciable parental attachment to defendants. To the contrary, Debbie and

Kathy had a strong bond with their resource parents. 5 The girls' resource mother

testified at trial that she wished to have all three children ultimately reside with

her and her husband, and that Jack was spending time visiting his sisters and had

a seemingly good relationship with them and the resource family. The judge

5

We note in passing that although Debbie told the trial judge during the in

camera interview she did not wish to be adopted, a child's wishes "should be but

one factor" in the judge's decision making calculus. E.P., 196 N.J. at 113.

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noted that Dr. Fleming agreed that Carmela was unable to parent the children by

herself in the foreseeable future.

In their original briefs, defendants essentially challenged the weight that

the judge gave to Dr. Katz's opinions regarding the bonding evaluations. At the

time, the Law Guardian echoed those arguments. However, now we consider

only whether the trial evidence supported the judge's conclusion that the

Division had met it burden of proof regarding prong four as to Kathy. We

conclude the evidence was sufficient to support the judgment of guardianship as

to Kathy.

III.

The issue now becomes whether the remand judge mistakenly exercised

her discretion by failing to vacate the judgment of guardianship. See J.N.H.,

172 N.J. at 473 ("It is within the trial court's sound discretion, guided by

equitable principles, to decide whether relief should be granted pursuant to Rule

4:50-1." (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994))).

We will not reverse the judge's decision "unless it represents a clear abuse of

discretion." Ibid. (quoting Hous. Auth., 135 N.J. at 283).

A motion brought pursuant to the Rule must be 1) supported by changed

circumstances; and, 2) the moving party bears the burden of proving that

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subsequent events justify relief. Ibid.; see also N.J. Div. of Youth & Family

Servs. v. L.L., 201 N.J. 210, 225–26 (2010) (applying same standards to motion

to vacate judgment of Kinship Legal Guardianship); N.J. Div. of Youth &

Family Servs. v. T.G., 414 N.J. Super. 423, 434–36 (App. Div. 2010) (applying

same standards to motion to vacate voluntary surrender of parental rights) .

Rule 4:50-1(e) provides relief from "prospective application" of a

judgment that is "no longer equitable." "The moving party 'bears the burden of

proving that events have occurred subsequent to the entry of a judgment that,

absent the relief requested, will result in "extreme" and "unexpected" hardship.'"

J.N.H., 172 N.J. at 473 (quoting Hous. Auth., 135 N.J. at 285–86). Subsection

(f) of the Rule provides relief for "any other reason[.]" "Similar to subsection

(e), because of the importance in the finality of judgments, relief under

subsection (f) is available only when 'truly exceptional circumstances are

present.'" Ibid. (quoting Hous. Auth., 135 N.J. at 286).

"Regardless of the basis, vacation of a judgment under Rule 4:50-1 should

be granted sparingly." Id. at 473–74 (citing Pressler, Current N.J. Court Rules,

comment 1.1 on R. 4:50-1 (2001)). Furthermore, "in a parental termination case,

the primary issue is not whether the movant was vigilant in attempting to

vindicate his or her rights or even whether the claim is meritorious, but what

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effect the grant of the motion would have on the child." Id. at 475. Applying

these standards to the facts of this case, it is clear that the remand judge did not

mistakenly exercise her discretion by denying defendants' motion to vacate the

judgment of guardianship as to Kathy.

Both defendants' supplemental briefs reargue the points raised after trial,

specifically, that the evidence supporting the judgment of guardianship was

insufficient. Carmela does so in the context of the remand judge's purported

misapplication of the holding in J.N.H.

The remand judge seemingly focused on the correctness of the original

judgment, and whether evidence of changed circumstances regarding the

children undermined the trial judge's legal conclusions supporting termination.

As the Court made clear in J.N.H.,

The very purpose of a Rule 4:50 motion is not, as in

appellate review, to advance a collateral attack on the

correctness of an earlier judgment. Rather, it is to

explain why it would no longer be just to enforce that

judgment. The issue is not the rightness or wrongness

of the original determination at the time it was made but

what has since transpired or been learned to render its

enforcement inequitable.

[172 N.J. at 476.]

" [O]ur examination of whether defendant's motion was properly denied

is guided by the two-pronged examination articulated in J.N.H." T.G., 414 N.J.

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Super. at 435. The judge found circumstances had changed since the judgment

was entered as to Debbie and Jack because neither child now had reasonable

prospects for adoption. Focusing on prong four, the judge granted the motion

as to those two children.

However, she reviewed the remand evidence regarding Kathy and

concluded that defendants failed to demonstrate sufficient changed

circumstances in the first instance. In other words, the judge found that neither

developments in defendants' lives since the judgment was entered, nor "the

minimal change in circumstances of [Kathy's] position," were sufficient to

vacate the judgment. We defer to the remand judge's factual findings, which

were amply supported by the credible evidence in the record. See, e.g., R.G.,

217 N.J. at 552. We agree that there was little evidence of change in defendants'

lives that justified the extraordinary relief of vacating the judgment of

guardianship, and, as the judge noted, the only change in Kathy's circumstances

was the absence of Debbie from her resource home and the likelihood that Kathy

would reside in a home without either sibling.

Nevertheless, even if the judge mistakenly concluded the change in

Kathy's circumstances was insignificant, we affirm for reasons in addition to

those expressed in the judge's oral opinion. See, e.g., Hayes v. Delamotte, 231

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N.J. 373, 387 (2018) ("A trial court judgment that reaches the proper conclusion

must be affirmed even if it is based on the wrong reasoning." (citing Isko v.

Planning Bd. of Livingston, 51 N.J. 162, 175 (1968))).

Simply put, neither defendant demonstrated that the judgment of

guardianship as to Kathy was now inequitable or unjust, i.e., that exceptional

circumstances made prospective application of the judgment was no longer in

Kathy's best interest and presented an extreme and unexpected hardship to the

child. J.N.H., 172 N.J. at 473–74. The record is replete with the remand judge's

factual findings to the contrary.

We reject the procedural arguments Harry raises in his supplemental brief.

Our remand order only required the judge to consider defendants' motions to

vacate the guardianship judgment if they were made. It set no parameters on the

exercise of the judge's discretion as to the conduct of the proceedings after

defendants' motions were made. Harry contends the judge's refusal to permit

new bonding evaluations denied him due process and a full development of what

had transpired since entry of the judgment. We disagree.

In our view, the judge accorded both defendants the opportunity to present

evidence of changed circumstances in their lives and in Kathy's life. The judge

permitted a psychological evaluation of Kathy by Dr. Smith. Defendants then

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had the opportunity to cross-examine Drs. Katz and Smith. Both defendants

produced their own expert testimony. As the remand judge explained in denying

requests for new bonding evaluations, Kathy had not seen her parents for a

substantial period of time. We cannot conclude the judge mistakenly exercised

her discretion by limiting the expert testimony at the hearing.

We already addressed Harry's claim that the Division's "misconduct" in

failing to evaluate Cindy as a placement resource requires reversal of the

judgment, and we need not discuss the issue again in the context of Harry's

supplemental briefing. To the extent we have not otherwise addressed Harry's

arguments, they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

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