holding termination of the defendant's parental rights would not do more harm than good where the child's attachment to the resource parent was stronger than the child's attachment to the legal parent
How later courts described this case
- holding termination of the defendant's parental rights would not do more harm than good where the child's attachment to the resource parent was stronger than the child's attachment to the legal parent
- concluding the Division satisfied the fourth prong with expert testimony that the children had developed a "secure[] attach[ment]" to their resource parent but had only an "insecure attachment" to their legal parent
- applying the Strickland v. Washington, 466 U.S. 668, 694 (1984
- "[T]he harm . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child."
Written by the judges who cited it.
The opinion
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2819-19
A-2820-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
L.M.D. and C.F.S.,
Defendants-Appellants,
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF K.B.S.
and C.S., minors.
_________________________
Submitted May 5, 2021 – Decided July 7, 2021
Before Judges Ostrer, Vernoia and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0031-20.
Joseph E. Krakora, Public Defender, attorney for
appellant L.M.D. (Beth Anne Hahn, Designated
Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for
appellant C.F.S. (Dianne Glenn, Designated Counsel,
on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Donna Arons, Assistant Attorney General,
of counsel; Salima E. Burke, Deputy Attorney General,
on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Melissa R. Vance,
Assistant Deputy Public Defender, of counsel and on
the brief).
PER CURIAM
In these consolidated appeals, defendants L.M.D. (Laura) and C.F.S.
(Carl) appeal from a Family Part judgment terminating their parental rights to
their two daughters, K.B.S. (Kira), age four, and C.S. (Cara), age two. 1
Defendants contend the court erred by finding the Division of Child Protection
and Permanency (the Division) presented clear and convincing evidence
satisfying each prong of the best-interests-of-the-child standard embodied in
N.J.S.A. 30:4C-15.1(a). Laura also argues the court erred by relying on hearsay
1
We employ initials and pseudonyms to protect the privacy of the parties and
for ease of reference. R. 1:38-3(d)(12).
2 A-2819-19
embedded in a Division caseworker's investigative summary that was admitted
into evidence without objection and with defendants' consent. Unconvinced by
defendants' respective contentions, we affirm.
I.
A.
Kira was born prematurely to defendants in December 2016 and was
discharged from the hospital on March 26, 2017. On June 26, 2017, the Division
received a referral that Kira was taken via ambulance to Newark Beth Israel
Medical Center (BIMC) with "seizure-like" symptoms. BIMC concluded Kira
suffered from "bilateral acute subdural and subarachnoid hemorrhages," retinal
hemorrhages, and a "healing nondisplaced [humerus] fracture."
Carl informed a Division investigator that shortly after defendants and
Kira had arrived home on the evening of June 25, "he observed" Kira on the bed
"shaking her head and . . . saliva [was] running down her head." He said "he
thought [she] was choking," so he "patted her on her back" and "suctioned the
phlegm out [of] her mouth and nose." Laura claimed she was not present when
Carl first saw Kira shaking; she arrived "about [two] minutes" later; Carl
"advised her . . . [Kira] was not responding"; and Carl "laid [Kira] on the bed,"
"sucked the [mucus] out[,] and told [Laura to] call the ambulance." The
3 A-2819-19
investigator inquired if there was any history of trauma, and defendants advised
that about "a week prior," they were driving with Kira and "were almost hit by
another vehicle." They explained Kira's "car seat was not clicked in all the way,"
and when Carl "veer[ed] right to avoid an impact," her car seat "rolled forward[,]
leaving [Kira] upside down underneath." 2
On June 30, 2017, Carl "completed a [v]ideotaped [i]nterview
[s]tatement" with a detective from the Union County Prosecutor's Office, and,
for the first time, reported "that he shook [Kira] for five seconds when she wasn't
breathing." Using a doll, he demonstrated how he shook Kira.
On July 12, 2017, the court entered an order granting the Division care,
custody, and supervision of Kira. The order also granted defendants supervised
visitation. Kira was discharged from the hospital on July 17 and placed by the
Division into the home of her current resource parent, E.A. (Emily).
In an October 2017 report, Dr. Monica Weiner of the BIMC Metro
Regional Diagnostic and Treatment Center (RDTC) stated she found
"no . . . organic medical causes . . . for [Kira's] . . . hemorrhages, leaving
2
Laura "reported [Kira] . . . had no marks, cuts, bumps[,] or bruising" following
the alleged near-car-accident, and, "because she appeared well," defendants did
not take her to a doctor. Laura also said she and Carl took Kira "to the
pediatrician on [June 20, 2017]" but did not "report the incident . . . because [the
pediatrician] reported . . . [Kira] was well."
4 A-2819-19
trauma as the [only] explanation." She opined the "trauma occurred within
[hours to days] of [Kira] presenting to []BIMC," and that "the timing of [Kira]'s
symptoms" rendered the near-car-accident "less likely to be the cause of her
hemorrhages." She also determined that "if done with more force, the
mechanism of shaking as [demonstrated] by [Carl was] consistent with
[Kira]'s . . . hemorrhages." 3 She concluded "[t]he signs of healing" in Kira's
humerus were "too recent for the . . . injury to have been caused by the [near-
accident]," but Carl could have "possibl[y]" caused the injury by "roll[ing over]"
on Kira in bed.
Dr. Weiner further advised there were "bruises . . . on the backs of both
of [Kira's] . . . ears" and "small scratches or indentations behind [Kira's] left
ear." She reported these injuries would result from "pulling or twisting the ear
or [from] direct impact"; that defendants provided "no explanation" for the
injuries; and that the injuries "should be considered . . . inflicted." At a
3
Dr. Weiner found "[t]he shaking mechanism [demonstrated by Carl] would
also explain [Kira]'s later episodes of apnea and seizures" at BIMC. She
additionally noted neither defendant reported Kira hitting her head during the
near-car-accident, and that, during Kira's three-month admission to BIMC
following her birth, BIMC performed "three head ultrasounds and multiple
retina exams [on Kira] which did not reveal any hemorrhages."
5 A-2819-19
November 2, 2017 hearing, the court continued the Division's care, custody, and
supervision of Kira. 4
In December 2017, Carl voluntarily waived his right to a fact-finding
hearing and stipulated to "a finding of abuse or neglect pursuant to N.J.S.A. 9:6-
8.21(c)." Specifically, he stipulated: (1) "he held [Kira] by her upper body and
shook her," and "Dr. Weiner concluded . . . [this] mechanism of shaking would
cause" Kira's head injuries; and (2) "on June 22, 2017, he awoke to find his
arm . . . on top of [Kira]," and "Dr. Weiner opined . . . this . . . could have
resulted in [Kira's] bone fracture." The Division determined the allegations of
abuse or neglect against Laura were not established.
In December 2017 and January 2018, Dr. Eileen Lopez-Alonso conducted
her first of four psychological evaluations of defendants. She concluded
defendants "responded to [self-reported testing measures] in such a way as to
portray [themselves] as exceptionally free of the common shortcomings to which
most individuals will admit"; their responses were associated with "either an
overt attempt to give socially desirable responses . . . to create a positive image
or . . . a denial of even minor faults because of excessive concern [of] the
4
The court's November 2, 2017 order continued defendants' supervised
visitation and required the Division to assess relatives of defendants for
placement.
6 A-2819-19
consequences"; and their response styles likely indicated "an underreporting of
symptoms."
Dr. Alonso stated that "[o]f most concern [were Kira's] unexplained
injuries"—particularly to her ears—and defendants' "lack of
[explanation] . . . limit[ed her] ability to comprehensively identify risk factors
in this case." She found that "[w]ithout identifying the risk factors that exposed
[Kira] to injury, she remain[ed] at risk." She noted that Laura's test scores and
delay in getting Kira treatment "indicate[d] a need for parenting education," and
she recommended defendants "attend domestic violence counseling," 5 "have
more frequent [supervised] visits with [Kira] . . . to promote bonding" until
therapeutic visitation could be achieved, and "be re-evaluated" "[p]rior to any
changes in visitation."
At a March 2, 2018 hearing, the court continued the Division's care,
custody, and supervision of Kira, and required that the Division provide
defendants with "more frequent[,] . . . therapeutic visit[ation]." Defendants
participated in therapeutic visitation through Tri-City People's Corporation
(TCPC) from March to April 2018. Toni Caldwell, Executive Director and CEO
of TCPC, reported "[t]here was no evidence of negative or harmful behavior
5
Defendants reported prior incidents of domestic violence.
7 A-2819-19
exhibited in any visit" and defendants "presented as loving and engaging
parents." She "recommend[ed] . . . reunifi[cation]."
On May 3, 2018, Emily wrote to the Division advising of her "desire to
adopt" Kira. The Division provided her with an "Adoption and Kinship Legal
Guardianship [(KLG)]" "[f]act [s]heet of [d]ifferences." On May 10 and 15,
defendants began domestic violence counseling at the Clinic for Youth & Family
Solutions (CYFS).
Laura gave birth to Cara on May 18, 2018 at Clara Maass Medical Center
(CMMC). As a condition of permitting Laura to retain custody of Cara, the
Division implemented a safety protection plan requiring Carl to "leave the
home" and prohibiting him from visiting Cara outside of the presence of a
relative or one of the parenting aides supplied to defendants. On May 24, 2018,
the court entered an order granting the Division care and supervision of Cara,
and continuing the Division's care, custody, and supervision of Kira. The court's
order incorporated the safety protection plan and required that the Division
incrementally increase defendants' individual unsupervised visitation with Kira.
Dr. Alonso conducted her second set of evaluations of defendants in June
2018. Prior to the evaluation, Dr. Alonso contacted Caldwell and Olawakemi
Abulude, one of the parenting aides supplied to defendants, "to gain a better
8 A-2819-19
understanding of [how defendants] were presenting . . . and what their progress
had been." Dr. Alonso advised that Caldwell and Abulude
"[b]oth . . . reported . . . [defendants] were very appropriate, . . . engaged, . . .
[and] consistent in treatment services[,] and [both] spoke very highly of
[defendants]."
Dr. Alonso again found defendants "attempted to portray [themselves] as
relatively free of the common shortcomings to which most individuals will
admit," and their responses indicated an "underreporting of symptoms." She
acknowledged defendants "were . . . receiving ongoing individual domestic
violence counseling," and they "received positive reviews from
their . . . therapists" and "reported gains from the services." She recommended
that "[s]upervision for [Cara] . . . be gradually removed"; defendants begin
"supervised overnight weekend visits with [Kira]"; defendants "continue
domestic violence counseling"; and that, once they completed counseling, they
begin "unsupervised overnight weekend visitation with [Kira]," with "gradual[]
increase[s]" to "result in reunification."
On June 22, 2018, the court returned full custody of Kira to Laura. The
court's order provided Carl could be "reunified fully with the family . . . once
[defendants] complete[d] domestic violence counseling," which they did in July
9 A-2819-19
2018. The Division then "permitted [Carl] to move back in[to] the home." On
July 26, 2018, the court entered an order "transferring . . . [full] custody of
[both] children . . . to [defendants] jointly." 6
B.
Just over two weeks later, on August 13, the Division received a referral
from CMMC that Cara was brought to the ER with a "fracture of her left femur."
The caller reported Laura was "unaware of any injuries to [Cara]," and
defendants "[did] not have any explanations." 7 Cara was transferred to BIMC
on August 14, where additional testing by the RDTC revealed she also suffered
"subacute subdural hemorrhages on both sides of her brain."
Defendants provided various accounts of the potential cause of Cara's
fractured femur when questioned at different times by hospital personnel, the
Division, and in a recorded video statement with a detective from the Newark
Police Department (PD). The accounts included: (1) "[Kira] could have tugged
on [Cara]'s leg while [Cara] was in the swing"; (2) "[Kira] fell and landed on
[Cara]'s waist" while Laura was with the children and Carl was "in the shower"
6
The order noted the "transfer[ of] . . . custody [was] . . . effective as of July
18, 2018."
7
The reporter advised Cara "[did] not appear to be in pain," and she was "eating
and acting normal[ly]."
10 A-2819-19
on August 12; (3) "[Kira fell] on [Cara] on a separate occasion" "a week prior";
and (4) Laura injured Cara while "turn[ing] her" in her bassinet on August 12.
Defendants "denied noticing [Cara]'s leg being swollen" prior to August 13. Dr.
Weiner "requested" that the Division not question defendants "regarding
[Cara's] head trauma" because the RDTC discovered Cara's head injuries "after
[defendants' v]ideo [s]tatements with [the] Newark [PD]." 8
On August 14, 2018, the Division conducted a Dodd removal of the
children. 9 The Division returned Kira to Emily's care, where she remained
throughout the guardianship litigation. The Division placed Cara in Emily's care
when the child was discharged from the hospital on August 29, but on September
21 the Division placed Cara into the care of her current resource parents, where
she remained throughout the trial. In November 2018, Cara's resource parents
wrote to the Division advising of their "intention to adopt" Cara. Following the
8
A Division investigator attempted to meet with defendants concerning Cara's
head trauma on December 11, 12, and 13, 2018. The Division noted defendants
"initially agreed to meet [the] investigator" but "did not show up" to the
meetings, and "[d]uring a . . . telephonic contact on" December 14, defendants
"decline[d] to be interviewed" further without counsel present.
9
A "Dodd removal" is an emergency removal of a child from the custody of a
parent without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd
Act, N.J.S.A. 9:6-8.21 to -8.82.
11 A-2819-19
children's August 14, 2018 removal, the Division provided defendants with
weekly supervised therapeutic visitation through Family Connections (FC).
Dr. Weiner issued another report in December 2018. She opined that
Cara's fractured femur "was caused by force directed at the bone at an angle,
potentially with a twisting mechanism," and because "[t]he femur is the largest
bone in the body[,] . . . to break it would take more than the usual amount of
force needed to manipulate an infant's legs for normal care." She reported,
"[w]ith a femur fracture, [Cara] would not have been able to move her leg or
have her leg moved without significant obvious distress," but Dr. Weiner noted,
based on her review of defendants' recorded video statements and Division
contact sheets, that Laura "reported [Cara] . . . was well on" August 11; Laura
reported she changed Cara with only "the usual amount of crying" on August
12; and defendants "reported . . . [Laura] first noticed . . . [Cara]'s leg was hard
and/or swollen during [a] diaper change at approximately 2:30 [a.m.]" on August
13. Dr. Weiner stated "[s]welling after a fracture can take [minutes to hours] to
become noticeable[,] but [it] would not be obvious instantly." She concluded
"[i]f [Cara]'s leg was swollen and 'hard' at 2:30 [a.m. on August 13], the fracture
occurred before [then]." Thus, she opined "none of [defendants']
12 A-2819-19
explanations . . . reasonably account[ed] for" Cara's injury, and "physical abuse
[w]as the [only] explanation."
Dr. Weiner found Cara's "hemorrhages [were] . . . older than [twenty-
four] hours but less than three weeks old," and Cara "did not have any signs or
symptoms of . . . organic causes," nor "were [any] reported." Dr. Weiner stated
"[n]on-medical causes of [Cara's] hemorrhage[s] include various types of head
trauma," including "[d]irect impact or acceleration-deceleration trauma."
Because defendants did not report "accidental head trauma," Dr. Weiner
concluded "abusive head trauma" was "the [only] explanation." She
recommended defendants have only "closely supervised" visitation with the
children.
On April 5, 2019, defendants waived their rights to a scheduled fact-
finding hearing and stipulated to the Division's allegations of abuse. At that
time, Laura offered Carl's mother, O.T. (Ollie), for placement of the children.
Dr. Alonso conducted her third set of evaluations in May 2019. When she
questioned Laura about Cara's injuries, Laura reported for the first time that the
family "visit[ed Carl's] family in New York" about a week prior to the referral;
"she had just met [Carl's] family that day"; and Carl's "cousins . . . took [Cara]
to another room" for approximately "[thirty to forty] minutes." She claimed she
13 A-2819-19
"check[ed] on [Cara] every [fifteen] . . . minutes" during that time. She also
"reported . . . [leaving] Cara with [Carl]'s mother." She said that because "this
was the first time she met [Carl]'s family[,] . . . she did not want to leave [the]
children alone with them[,] but [she] did so anyway." She stated she "did not"
"note[] any injuries . . . or . . . change[s] in [Cara's] behavior after the visit to
New York," but Cara "was not lifting her leg as high while . . . in New York."
Laura claimed she "notic[ed] . . . [Cara]'s leg was 'kind of hard' [two to three]
days after the . . . trip."
Laura also "reported . . . [Kira] fell and landed on [Cara]'s head" while
Laura was "chang[ing Cara]" about "three days before" the referral. Laura
further advised Kira "sat on [Cara] . . . two days before the hospital"; Laura may
have hurt Cara "four days" before the referral by "turn[ing Cara] quick[ly]"
when Cara was vomiting; and "a few days before" the New York trip, Laura
"had a seizure [while] . . . holding [Cara on the sofa]" and Cara "fell."10 She
advised that on the morning of August 13, Cara "was not moving her leg as much
as . . . the week before" and "it looked like [her leg became] swollen overnight."
10
Laura advised "she experiences unpredictable seizures," she is actively being
treated by a doctor, and she "never forgets to take" her medication.
14 A-2819-19
Carl "also reported . . . the family had visited his family . . . the week
prior[,] and []his report was consistent with [Laura]'s." He said Cara "never fell
[while in New York] because she never cried." He stated he did "not . . . [tell]
the detective about the trip . . . because he and [Laura] thought about it
afterwards." He "reported noti[cing] . . . [Cara]'s leg was swollen . . . three
hours before taking her to the hospital." Dr. Alonso reported Carl had "no
explanation" concerning "the position" of Cara's fracture, nor did he have an
explanation for "[Cara]'s brain injury."
Dr. Alonso concluded defendants' responses to test items again "indicated
[defendants] . . . attempted to portray [themselves] as relatively free of the
common shortcomings to which most individuals will admit"; their responses
were "indicative of [defendants being] . . . generally satisfied with themselves
and see[ing] little need for major changes in their behavior"; and their responses
"likely underrepresent[ed] the extent and degree of significant test findings."
Dr. Alonso opined Laura's "reported decision to . . . [leave Cara] in the
care of individuals she had just met and [Laura] not having changed her behavior
to protect [Cara] from [Kira] falling on her multiple times indicate[d] poor
judgment and negligence." Dr. Alonso acknowledged defendants "completed
recommended services, presented well, and received positive reviews
15 A-2819-19
from . . . treatment providers" following Kira's injury, but she noted, "[d]espite
this, [Cara] was discovered to have [similar] unexplained injuries in August
2018"—less than one month after defendants' reunification with Kira. She
opined "[i]t is possible . . . [defendants] presented well during treatment but
were not forthcoming and/or did not openly participate in treatment."
Dr. Alonso found defendants "repeatedly presented as guarded" and
"demonstrated positive impression management," and that, while "some degree
of positive impression management is not uncommon," defendants "also
presented new information and exhibited some inconsistency in their reports[,]
which indicate[d] . . . they have not been forthcoming." She concluded
"[c]hronic patterns of serious injury to the children . . . and lack of explanations
persist"; "the risk factors that led to [the children]'s injuries continue to be
present and have not been identified or controlled for"; "[a]s long as
[defendants] continue to present as guarded about the circumstances that led to
the[] children being injured, it is difficult to make any recommendations that
would lead to . . . change substantial enough to reduce the risk of harm [to] the
16 A-2819-19
children . . . if placed in their care"; and "[a]s long as these dynamics exist[],
reunification cannot occur." 11
On July 17, 2019, the court approved the Division's plan of termination of
defendants' parental rights followed by adoption. In August 2019, defendants
began couple's counseling with the Youth Development Clinic (YDC). YDC
did not note "any pressing concerns" with defendants' "relationship" or "ability
to parent." On August 26, Laura first advised a Division caseworker that Cara
had "slept in the same bed as [Ollie]" while in New York, and the next day "her
leg was visibly swollen," and she could not lift it. Carl confirmed Cara slept
with Ollie, and he said Ollie "is an evil person" and that he had not
communicated with her for eight years before the visit.
The Division filed its guardianship complaint in August 2019. On
September 12, the court dismissed the Title Nine litigation.
The Division assessed and ruled out several of defendants' relatives for
placement of the children, including Ollie; Laura's father, W.D.; Laura's
grandmother, M.R.; and Carl's aunt, I.M., none of whom appealed from the
Division's rule-out decisions. The Division also considered Laura's sisters, C.D.
11
Dr. Alonso recommended defendants "continue . . . supervised therapeutic
visits" with the children; "be referred for individual psychotherapy" and
"couples counseling"; and "be re-evaluated prior to any changes in supervision."
17 A-2819-19
(Christine) and Y.D. (Yara), for placement. In July 2019, the Division began
assessing Christine, who expressed a willingness to adopt both children. Yara
supported placement of the children with Christine but advised the Division she
would adopt the children if Christine was not approved. While the Division was
assessing Christine, she added her boyfriend as a prospective household
member, which delayed the process. She restarted the process without the
boyfriend in December 2019 and was being assessed at the time of the
guardianship trial. The Division provided the children's resource parents with
periodic updates on its efforts to place the children with relatives.
Dr. Alonso performed her fourth set of evaluations in October 2019. 12
Laura reported she let Cara sleep with Ollie because Ollie "begged" defendants.
Laura stated she did "not feel[] like [she] should, but [she felt] bad telling [Ollie]
no." 13 She claimed that the next morning she noticed Cara's leg "wasn't going
up as high." She explained she "thought of this from the very beginning" but
she did not report it earlier because she "didn't want to make someone feel bad
12
Carl returned to individual counseling in October 2019. In February 2020,
Carl's clinician found Carl "seem[ed] to . . . understand[] . . . what is considered
inappropriate parenting," and she opined "[i]t would be beneficial for [Carl] to
apply skills learned [in] therapy and continue working o[n] goals."
13
Laura reported Carl said he did not "think [Ollie would] hurt [Cara]."
18 A-2819-19
or give them problems." Carl advised "that two days after arriving home from
New York, he noticed . . . [Cara]'s leg was swollen." 14
Dr. Alonso concluded that even accepting Laura's and Carl's accounts
concerning Ollie, they "place[d Cara] in a position that from parenting
standards, they knew not to." Dr. Alonso noted Laura "reported a willingness
to place her child at risk . . . to not hurt someone's feelings and then withheld
information to protect an individual she reportedly suspected of having caused
severe harm to her child." Dr. Alonso opined "[t]his indicate[d] very poor
judgment . . . [and] ongoing parenting deficits that raise [a] risk of harm . . . and
provide[] evidence [of defendants] . . . not having been forthcoming in the past."
Dr. Alonso noted defendants "expressed a strong desire to be reunified
with their daughters and pointed to their consistent attendance in treatment
services as a sign of their commitment," but she found:
Both [defendants] also reported mishandling their
children (shaking [Kira] in response to her reported
seizure in 2017, [Kira] falling on [Cara] multiple times
while in their care, [Laura] dropping the children more
than once and concealing this information) and
continued to present new and contradictory information
regarding the circumstances surrounding . . . the[]
14
Carl also advised Dr. Alonso that Laura recently stated "she fell asleep on a
couch . . . with [Kira] and [Kira] fell" about a week before her hospitalization.
Laura did not advise Dr. Alonso about this incident.
19 A-2819-19
children's injuries without adequate explanation as to
why this information was previously omitted.
Dr. Alonso explained defendants continued to present with a "significant
degree of impression management," which was "in line with [their] guarded
presentations during . . . previous . . . evaluations" and was indicative of an
"underreporting" of symptoms. 15 She found defendants' "continue[d] . . . lack
of disclosure[,] and [their] distortion and minimiz[ation of] their involvement in
the children's injuries," reflected "that they have been unable to ameliorate the
risk of harm present to the[] children." She noted, "[d]espite consistent
participation in treatment services and . . . positive reviews from . . . service
providers" following Kira's injury, "[Cara] was inflicted with non-accidental
harm and sustained similar severe injuries . . . while in [defendants'] care."
Based on her evaluations and reports from service providers, Dr. Alonso found
defendants "both have a fair to good understanding of child rearing practices,"
but she opined this "understanding . . . does not translate into their behavior and
history of parenting with their children."
Dr. Alonso concluded:
15
Dr. Alonso noted that when she "asked [Carl] what he would change to ensure
his daughters' safety," he replied, "The best I would do would be to put cameras
in my home" and "car . . . . After that, I don't know." She reported Laura
"provided no plan for ensuring the safety of her children."
20 A-2819-19
[Although t]reatment ha[d] been provided based upon
the issues presented by [defendants,] . . . they are not
engaging appropriately so that treatment can be
effective. Instead of focusing on ameliorating the risk
of harm to their children, they have used treatment
services as an opportunity to present themselves in
whatever light they believe will appease their providers
and to promote the idea of being a model parent. There
appear to be characterological problems of presenting
one way while behaving another. These characteristics
and long-standing deficits are unlikely to be remediated
in the foreseeable future.
These children have experienced severe physical abuse.
There is now a pervasive pattern of severe and
imminent risk of harm for these children being placed
in [defendants'] care. There is a notable discrepancy
between the reports of [defendants'] supervised contact
with their children and the children's treatment while in
[defendants'] unsupervised care. The risk here is not
one of lack of parenting knowledge[;] it is one of
violence against the children being perpetuated in spite
of knowledge of parenting.
In October 2019, Dr. Alonso conducted bonding evaluations of the
children with defendants and with their respective resource parents. She found
that "while [Kira] appear[ed] to at times enjoy playing with [defendants], she is
not securely attached to them and does not view them as a primary source of
nurturing." However, she noted "[Kira] appeared to be very attached to her
resource parent." She explained Kira "sought . . . out [her resource
parent] . . . after falling during the observation" and when her resource parent
21 A-2819-19
left the room, and "[Kira] and her resource parent physically touched and hugged
throughout the observation." She concluded Kira "view[s] her resource parent
as . . . a significant and central parental figure and is securely attached to her."
She "opin[ed,] . . . within a reasonable degree of psychological certainty[,] that
if [Kira is] . . . separated from her psychological parent, she would suffer a
traumatic loss that would produce significant and enduring harm." She also
noted Kira's resource parent "reported . . . she [was] aware of the importance of
the sibling bond and [had] already . . . taken steps to ensure this relationship." 16
Dr. Alonso noted Cara "appear[ed] to have a positive relationship with
[defendants] and her resource parents." However, she found, "[g]iven [Cara's]
young age, early separation from [defendants], and [Dr. Alonso's] observations
during the . . . evaluation, [Cara] seem[ed] to be on a trajectory towards
developing a secure attachment with her resource parents." She
"opin[ed,] . . . within a reasonable degree of psychological certainty, that if
[Cara] were to be separated from her psychological parent[s], she would
demonstrate an emotional reaction that would likely manifest in the form of
developmental regressions." She stated "that given the right circumstances,
16
Dr. Alonso noted that at the bonding evaluation, "[Kira]'s resource parent
reported . . . she is committed to adoption."
22 A-2819-19
[Cara] might be able to over time recover from the loss of her resource parents,"
but "the data [did] not suggest . . . [defendants] could mitigate the anticipated
harm." Thus, she found "[r]eturning [Cara] to [defendants'] care would be
placing [her] at risk of harm." She concluded "[p]reserving [Cara]'s relationship
with her only consistent caregiver[s]"—her resource parents—"would likely
serve to mitigate any reaction she may experience through the loss of" her
relationship with defendants.
Dr. Alonso determined defendants are "unlikely to become a viable
parenting option for [Kira] and [Cara] in the foreseeable future," and the
children "would be well[-]served by achieving permanency through adoption."
She opined "to do so would produce more good than harm."
At the guardianship trial, the Division presented testimony from Dr.
Weiner, Dr. Alonso, and a Division caseworker. Dr. Weiner, who was qualified
as an expert in medicine and pediatric child abuse and neglect, testified none of
defendants' explanations "reasonably account[ed] for [Cara's] femur fracture." 17
She explained Cara's particular fracture required "more force" and was "even
more associated with abuse." She testified Laura's account of turning Cara in
17
Dr. Alonso also advised that while Kira rolling off the couch a week before
her hospitalization could "[p]otentially" account for her humerus fracture, it
would not explain her "neurological symptoms" a week later.
23 A-2819-19
her bassinet did not indicate the presence of "enough force" to cause her injury;
the injury could not have resulted from Kira pulling on Cara's leg or from Cara
hurting herself in her swing; and that, while it was not "impossible" for Kira to
have broken Cara's femur by falling on her, Cara's normal behavior following
the incident as reported by defendants indicated she suffered the injury after that
alleged event. Dr. Weiner likewise stated that if Cara had suffered the injury in
New York "a week before she was admitted to the hospital," or when Laura
dropped Cara during a seizure prior to the New York trip, "it would have been
noticeable that [Cara's] leg was bothering her" during the numerous diaper and
clothing changes Cara "had to go through in a week leading up to her admission
[to BIMC]."
Dr. Weiner opined Cara's injury was "inflicted" by "some adult caring for
her [being] angry, frustrated, [or] distracted, . . . and . . . grabb[ing] her leg
and . . . twist[ing] or hit[ting] it." She also testified that while a fall could cause
a subdural hemorrhage, it would be "very unusual" for a fall to do so without
"an accompanying skull fracture," which Cara did not have.
Dr. Alonso, an expert in psychology, testified concerning her reports. She
explained defendants offered "no plan to ensure the safety of the
children, . . . the narrative . . . continued to change," and defendants "had not
24 A-2819-19
been forthcoming." She acknowledged the positive reports concerning
defendants provided by service providers, but concluded that although
defendants behaved appropriately with the children "under supervision," "when
the supervision is removed[,] . . . [the children] are seriously injured."
Dr. Alonso further testified the children have been harmed by a lack of
permanency. She explained that "[b]ecause there [is] no other alternative for
permanency at this time" and "[t]he only opportunity for the [children] to
achieve stability [is] with their resource parents," the children's best interests
would be served by termination of defendants' parental rights followed by
adoption by the children's respective resource parents. She concluded doing so
"would produce more good than harm."
The Division caseworker testified about the various services the Division
provided defendants and the Division's interactions with defendants. The
caseworker noted the Division was still assessing Christine. She testified both
children's resource parents were committed to adoption; Kira had lived with her
resource parent for about two-and-a-half years in total; Kira was happy with her
resource parent; and her resource parent was attending to her needs, including
"special needs" such as early intervention services. The caseworker also
testified Cara had lived with her resource parents since approximately
25 A-2819-19
September 2018 and was "very loving" toward her resource parents. The
caseworker noted both children's resource parents were committed to
maintaining the sibling relationship.
The court found each of the Division's witnesses credible. The court also
admitted into evidence eighty-two exhibits at the Division's request and with
defendants' consent, including an investigative summary prepared by a Division
investigator describing defendants' recorded video statements with the Newark
PD following Cara's injuries, and the expert reports referencing the Division's
documentation. Laura and Carl did not testify, nor did they present any
witnesses.
Based on this record, Judge Garry J. Furnari found, in a comprehensive
oral decision, the Division proved, by clear and convincing evidence, that:
(1) The child[ren]'s safety, health[,] or development has
been or will continue to be endangered by the parental
relationship;
(2) The parent[s are] unwilling or unable to eliminate
the harm facing the child[ren] or [are] unable or
unwilling to provide a safe and stable home for the
child[ren] and the delay of permanent placement will
add to the harm. Such harm may include evidence that
separating the child[ren] from [their]
resource . . . parents would cause serious and enduring
emotional or psychological harm to the child[ren];
26 A-2819-19
(3) The [D]ivision has made reasonable efforts to
provide services to help the parent[s] correct the
circumstances which led to the child[ren]'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 N.J. Div. of Youth &
Fam. Servs. v. A.W., 103 N.J. 591, 604-11 (1986).]
To support his findings that the children'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), and that defendants are "'unwilling or
unable to eliminate the harm' that . . . endangered the child[ren]'s health and
development," In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999) (quoting
N.J.S.A. 30:4C-15.1(a)(2)), the judge noted, "[t]hroughout [the] litigation,
[defendants] provided conflicting [and] contradictory accounts as to when and
how [Cara]'s leg was injured," and that "Dr. Weiner concluded . . . none of the
explanations provided by [defendants] reasonably accounted for . . . [Cara's] leg
[injury] . . . and the only explanation was physical abuse." Judge Furnari also
found "neither [defendant] . . . provided an explanation as to how [Cara's head
injuries] occurred," and the judge relied upon Dr. Weiner's conclusion that,
"because no accidental head trauma explanation was provided," the nature of
27 A-2819-19
Cara's injuries left "non-accidental[,] . . . abusive head trauma . . . as the only
explanation." The court found these circumstances and explanations presented
"clear indications of actual physical abuse to the child." 18
The judge also relied on Dr. Alonso's opinion that although defendants
"had learned about . . . parenting skills" through Division resources, and "both
have a fair or good understanding of child rearing practices," "this
understanding . . . did not . . . translate into behavior and history of parenting
with their children." Based on this evidence, the judge determined that "[t]he
risk . . . is not one of a lack of parenting knowledge," but rather "[i]t is one of
violence against children being perpetrated in spite of the knowledge of
parenting."
Judge Furnari explained one of his "most significant findings" on the first
two prongs of the N.J.S.A. 30:4C-15.1 standard was that "[t]reatment
[was] . . . provided to [defendants] based on issues presented by [them]," but
"they have not engaged appropriately so that any treatment could be effective."
The judge based this finding in part on Dr. Alonso's opinion that "[i]nstead of
18
The court also found Carl "admits or at least somewhat admits . . . he [injured
Kira] by . . . shaking [her]" and by "partially rolling over on [her] in her sleep,"
and concluded "[t]hese actions . . . unquestionably constituted harm to [Kira]."
See K.H.O., 161 N.J. at 352 ("[T]he harm . . . must be one that threatens the
child's health and will likely have continuing deleterious effects on the child.").
28 A-2819-19
focusing on ameliorating the risk of harm to the children, [defendants] . . . used
treatment services as an opportunity to present themselves in whatever light they
believe[d would] . . . promote the idea of being . . . model parent[s]," and that
defendants' "continue[d] . . . lack of disclosure[,] and [their] distortion and
minimiz[ation of] their involvement in the[] children's injuries," rendered it
"difficult to make any recommendations that would . . . reduce the risk of harm
[to] the children."
The judge therefore concluded defendants harmed the children;
defendants failed to "address the[] issues" that led to the children's harm; and
defendants are thus unwilling or unable to "remediate[] the risk of harm" to the
children "in the foreseeable future."
Concerning prong three of the statutory standard, the judge found "[t]he
Division . . . made reasonable efforts to help [defendants] correct the
circumstances that led to the child[ren]'s removal," see N.J.S.A. 30:4C-
15.1(a)(3), "by providing a plethora of services to the family[,] including:
psychological evaluations, substance abuse assessments, domestic violence
referrals, individual and couple's therapy, parenting skills [training], visitation,
parent aide services, relative assessments, family team meetings, [and] drug
screen[ings]." Judge Furnari opined "the problem has not been the
29 A-2819-19
reasonableness of the services"; "[i]t is [defendants] that are the problem"
because they continuously "fail[ed to] . . . appropriately permit the services that
[were] provided to provide them with assistance." 19 The judge further found
that "despite the offering and provision of the services[,] neither parent is in a
position to care for [the children], nor will they be able to do so in the future."
Lastly, the judge found termination of defendants' parental rights would
not do more harm than good. See N.J.S.A. 30:4C-15.1(a)(4). The judge based
his determination primarily on Dr. Alonso's bonding evaluations, which he
found revealed Kira "is not securely attached to . . . [defendants] and does not
view them as central parental figures" but she "is securely attached to her
resource parent[]"; Kira "would [likely] suffer . . . severe and enduring harm if
her relationship with the resource parent[] is severed," which defendants "could
not mitigate"; Cara "would likely suffer harm if [her] relationship with her
resource parents is severed" that defendants are "unable to mitigate"; and
19
The court also found "adoption of the child[ren must be] neither feasible nor
likely in order for KLG to be [an] appropriate" alternative to adoption, and
"[b]oth . . . [children]'s" resource parents are "firmly committed to adopti[on]."
See N.J.S.A. 3B:12A-1(c) (providing KLG is only appropriate "where adoption
is neither feasible nor likely").
30 A-2819-19
"[Cara]'s resource parents would be able to mitigate any harm" caused by
"termination of [defendants'] parental rights." 20
The judge entered an order terminating defendants' respective parental
rights to Kira and Cara. 21 On appeal, defendants argue the Division did not
sustain its burden of proving by clear and convincing evidence any of the four
prongs of the best-interest standard. Laura also argues Judge Furnari erred by
basing his findings on "incompetent testimony and evidence." The Division and
the children's Law Guardian argue the guardianship order is supported by
sufficient credible evidence and should be affirmed.
II.
Parents have a "constitutional right 'to raise [their] child and maintain a
relationship with that child, without undue interference by the state.'" N.J. Div.
of Child Prot. & Permanency v. S.D., 453 N.J. Super. 511, 518 (App. Div. 2018)
(quoting N.J. Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 18 (2013)).
20
Judge Furnari "also acknowledged . . . the [children's] resource
parents . . . continue to maintain the sibling bond between the children," and
that, "[a]ccording to Dr. Alonso[,] the child[ren] see each other three to four
times a month"; "have sleepovers"; spend certain holidays together; "and have a
relationship with their [resource] parents and their sibling's resource parents."
21
Defendants advised the court of their intent to appeal the decision and
requested that they be permitted to continue visitation with the children pending
defendants' appeals, to which the Division agreed.
31 A-2819-19
"Permanent termination of parental rights is the ultimate intrusion on [this]
right . . . ." A.L., 213 N.J. at 25. However, this right is "not absolute," K.H.O.,
161 N.J. at 347, and must be balanced against "[t]he State['s] . . . basic
responsibility, as parens patriae, to protect children from serious physical and
psychological harm," N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 102
(2008).
In reviewing a decision to terminate parental rights, "[t]he scope of our
review of [the] . . . court's factual findings is limited." N.J. Div. of Youth &
Fam. Servs. v. L.J.D., 428 N.J. Super. 451, 476 (App. Div. 2012). "A Family
Part's decision to terminate parental rights will not be disturbed when there is
substantial credible evidence in the record to support the court's findings," N.J.
Div. of Child Prot. & Permanency v. K.T.D., 439 N.J. Super. 363, 368 (App.
Div. 2015), because the court "has the opportunity to make first-hand credibility
judgments about the witnesses . . . [and] 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 N.J. Div.
of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 293 (2007)). "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." Ibid. (quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 191
32 A-2819-19
N.J. 596, 605 (2007)). We review the trial court's legal conclusions de novo.
N.J. Div. of Child Prot. & Permanency v. J.B., 459 N.J. Super. 442, 451 (App.
Div. 2019).
Applying this standard, based on our review of the record and for the
reasons that follow, we reject Laura's argument that the court erred by admitting
the caseworker's summary of recordings of statements made by defendants to
the police, and defendants' contention the Division failed to prove each prong of
the best-interests standard by clear and convincing evidence.
A.
Laura contends the trial court's findings on each prong were based on
"incompetent testimony and evidence" because "the [Division's]
investigat[or] . . . entered a personal narrative based upon his viewing of"
defendants' recorded video statements to the Newark PD, and the Division's
experts later relied upon the investigation summary in "formulating [their]
opinions." She claims "[a]ll evidence and testimony which derived from or
included [the Division investigator's] personal rendition of the interrogations
[is] . . . rife with inadmissible, embedded hearsay," which "do[es] not satisfy
[the Division]'s 'clear and convincing' burden."
33 A-2819-19
The doctrine of invited error dictates that a party is precluded "from
arguing on appeal that an adverse decision below was the product of error, when
that party urged the lower court to adopt the proposition now alleged to be error."
N.J. Div. of Youth and Fam. Servs. v. M.C. III, 201 N.J. 328, 340 (2010)
(quoting Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996)); see also State
v. Kemp, 195 N.J. 136, 155-56 (2008) (finding the doctrine of invited error
barred the defendant from contesting on appeal testimony he agreed to at trial);
Spedick v. Murphy, 266 N.J. Super. 573, 593 (App. Div. 1993) ("A party who
consents to, acquiesces in, or encourages an error cannot use that error as the
basis for an objection on appeal.").
In M.C. III, the defendant "consented to the admission of
the . . . documents" he challenged as inadmissible on appeal. 201 N.J. at 341.
The Court found that "by consenting to the admission of the documents, [the]
defendant deprived the Division of the opportunity to overcome any objection
and deprived the trial court of the necessity to make a ruling based on the
arguments presented by both sides." Ibid. The Court explained "if defense
counsel had objected to the . . . documents, and the trial court agreed with those
objections, the Division could have taken steps to satisfy any evidentiary
requirements needed for the admission of the documents or presented a witness
34 A-2819-19
or witnesses in place of the documents." Ibid. However, because the "defense
counsel had sufficient time to review the exhibits and raise objections," the
Court found the defendant was "barred by the doctrine of invited error from
contesting for the first time on appeal the admission of the . . . documents." Id.
at 342. The Court noted, "Particularly where defense counsel may have made a
strategic decision to try the case based on the documents, instead of possibly
facing a witness's direct testimony, it would be unfair to the Division to reverse
on this issue." Ibid.
The record establishes both defendants' counsel consented to the
admission of the eighty-two exhibits the Division intended to rely upon to
support its case for termination of defendants' parental rights, including the
investigative summary of defendants' recorded video statements and the
subsequent expert reports referencing the summary. The court advised it was
"admit[ting] all [the exhibits]" and was "not going to run . . . through and read
every one . . . unless it[ was] called to [the court's] attention as being particularly
relevant."
Defendants do not allege they did not have "sufficient time to review the
exhibits [or] raise objections," ibid.; Laura claims only it "clearly" could not
"have been trial strategy [for defendants] to consent to the admission of hearsay
35 A-2819-19
of this kind." Initially, we reject Laura's contention the lack of an objection
could not have been a reasonable exercise of trial strategy. The investigator's
summary consists of a restatement of portions of recorded statements defendants
made to the police. Defendants had access to the recordings, and if the
investigator's summary was in any manner inaccurate, defendants could have
called the investigator who prepared the summary to testify. And, on appeal,
defendants do not argue or establish the investigator's summary was in any
manner inaccurate. 22
22
Laura argues her trial counsel's failure to object to the admission of the
summary and the expert reports referencing the summary constituted ineffective
assistance of trial counsel, but her claim is unsupported by any showing there is
a reasonable probability that but for counsel's failure to object to the admission
of the summary, the result of the guardianship trial would have been different.
See N.J. Div. of Youth & Fam. Servs. v. B.R., 192 N.J. 301, 307-09 (2007)
(applying the Strickland v. Washington, 466 U.S. 668, 694 (1984), standard,
requiring a showing that counsel's performance fell "outside the broad range of
professionally acceptable performance," and "counsel's deficient
performance . . . prejudice[d] the defense," to claims of ineffective assistance of
counsel in guardianship cases). Laura may have demonstrated she was
prejudiced by admission of the summary by showing it inaccurately described
what she said during her statements to the police. Laura does not make any such
showing, assert the investigator's summary of her statements was inaccurate, or
otherwise demonstrate she was prejudiced by admission of the summary. Those
failures require rejection of her ineffective assistance of counsel claim and
otherwise support the inference that her trial counsel made a reasoned strategic
decision not to object to the admission of the summary because it was accurate
and rendered unnecessary any review by the court of the recordings of Laura's
statements to the police.
36 A-2819-19
Under those circumstances, we reasonably infer defense counsel made the
strategic decision not to object to the investigator's alleged hearsay summary
because it accurately detailed defendants' statements on the recordings.
Additionally, by not objecting to the summary, defendants avoided the court's
review of the recordings showing defendants provided conflicting and
inconsistent versions of the purported events they claimed resulted in the
children's serious injuries. In any event, we are convinced defendants' consent
to the admission of the investigative summary bars Laura's challenge on appeal
to the admission of the summary under the doctrine of invited error. See M.C.
III, 201 N.J. at 342.
We also note that "[i]n spite of our invocation of the doctrine of invited
error, we would not automatically apply the doctrine if it were to 'cause a
fundamental miscarriage of justice.'" Ibid. (quoting Brett, 144 N.J. at 508).
However, as was the case in M.C. III, and for the reasons we have explained,
we are convinced Laura offers no evidence establishing any fundamental
injustice which would warrant a relaxed application of the doctrine. See ibid.
To the contrary, even if the investigative summary was admitted in error, we
find its admission was not "plain error" and was not "clearly capable of
producing an unjust result." R. 2:10-2.
37 A-2819-19
The record does not support Laura's claim the court's guardianship
decision was dependent on the investigator's summary of defendants' recorded
statements to the police. In the first instance, the record otherwise establishes
defendants gave conflicting versions of the purported events leading to the
children's injuries directly to the Division, and to Dr. Weiner and Dr. Alonso.
In addition, the court primarily relied on Dr. Weiner's and Dr. Alonso's expert
testimony to support its determination defendants presented an ongoing risk of
harm to the children and are unable or unwilling to remediate the risk of harm
in part because they offered conflicting and inconsistent versions of the events
resulting in Kira's and Cara's injuries. Dr. Weiner had a proper basis for her
opinion concerning defendants' conflicting versions of the events independent
of the investigator's summary because she reviewed the recorded statements to
the police.
The court similarly accepted Dr. Alonso's testimony, and, although she
did not review the recordings of defendants' statements to the police, she
conducted four separate evaluations of defendants during which they offered
conflicting and inconsistent versions of the events leading to the children's
injuries. Moreover, it was permissible for Dr. Alonso to rely on hearsay in the
investigator's summary if that hearsay is "of [the] type reasonably relied upon
38 A-2819-19
by experts in the particular field in forming opinions or inferences upon the
subject." N.J.R.E. 703. Laura does not contend Dr. Alonso's reliance on the
investigator's summary, to the extent it may have supported her expert opinion
testimony, violated N.J.R.E. 703.
In sum, we find no basis in the record to conclude the court's guardianship
decision was dependent upon the investigator's summary of defendants'
statements to the police. There was other evidence establishing defendants
offered numerous, varied, and inconsistent versions of the events leading to the
children's injuries, and the experts otherwise testified the events defendants
offered could not have resulted in the serious injuries found. The court properly
accepted Dr. Weiner's and Dr. Alonso's opinion testimony concerning the
significance of defendants' inconsistent versions of the events in its analysis of
the Division's proofs under N.J.S.A. 30:4C-15.1(a), and that testimony
supported the court's findings and conclusions.
B.
We next consider defendants' argument the court erred by finding the
Division clearly and convincingly satisfied its burden of proving each of the four
elements required for termination of parental rights under N.J.S.A. 30:4C-
15.1(a). Based on our review of the record, we are convinced Judge Furnari
39 A-2819-19
conducted the required fact-sensitive analysis of each statutory factor, see
K.H.O., 161 N.J. at 348, and we affirm substantially for the reasons set forth in
his comprehensive and well-reasoned decision. We add only the following
comments.
The court's finding the Division proved by clear and convincing evidence
that defendants harmed the children, present a continuing risk of harm, and are
unwilling or unable to alleviate the risk of harm is supported by substantial
credible evidence. See N.J.S.A. 30:4C-15.1(a)(1) to (2). Kira was seriously
injured while in defendants' care, and, despite defendants' participation in
multiple services following Kira's injuries, Cara sustained similarly severe
injuries in defendants' care. As Judge Furnari explained, "Dr. Weiner
concluded . . . none of [defendants'] explanations . . . reasonably accounted for"
Cara's injuries, "and the only explanation was physical abuse." Dr. Alonso
determined defendants "continue[d] to present with denial, minimization, and
new accounts"; "[c]hronic patterns of serious injury to the children, completion
of services, and lack of explanations persist"; "the risk factors that led to [the
children]'s injuries continue to be present and have not been identified"; and
"[a]s long as [defendants] continue to present as guarded about the
circumstances that led to their children being injured, it is difficult to make any
40 A-2819-19
recommendations that would . . . reduce the risk of harm [to] the children . . . if
placed in their care."
That evidence supports the court's findings that "neither [defendant] is in
a position to care for [the children], nor will they be able to do so in the
[foreseeable] future." Thus, the court concluded the children'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), and defendants are "unwilling or
unable to eliminate the harm facing the child[ren]," N.J.S.A. 30:4C-15.1(a)(2).
We discern no basis to disturb the court's findings on the first two prongs. 23
23
In support of its determination on the first two prongs, the court correctly
noted Kira was "three years old" at the time of trial and "ha[d] been in Division
custody for over two years," and Cara was "[twenty] months old" and
"ha[d] . . . been in . . . Division custody for [eighteen] months." The court thus
found "[b]oth children have been denied permanency as a result of
[d]efendant[s'] inability to parent, in spite of [provided] services," and that,
based on defendants' continued minimization of their involvement in the
children's injuries and Dr. Alonso's resulting inability to recommend services to
ameliorate the risk of harm, the children would continue to be denied
permanency if defendants' parental rights were not terminated. Because a child's
unfulfilled need for a permanent home constitutes harm under the first prong,
see N.J. Div. of Youth & Fam. Servs. v. B.G.S., 291 N.J. Super. 582, 591-92
(App. Div. 1996), the court's determination that defendants harmed the children
by denying them permanency and defendants are "unwilling or unable to
eliminate the harm," N.J.S.A. 30:4C-15.1(a)(2), because the children will
continue to be denied permanency if defendants' parental rights are not
terminated, is supported by substantial credible evidence, see B.G.S., 291 N.J.
Super. at 591-92.
41 A-2819-19
The court's finding under the third prong that the Division provided
defendants with numerous and ongoing "services to help [defendants] correct
the circumstances which led to the child[ren's] placement outside the home" is
also supported by substantial credible evidence. N.J.S.A. 30:4C-15.1(a)(3).
Moreover, we reject Laura's claim the Division did not honor its obligation to
"thoroughly explore[] and exhaust[]" "alternatives to terminating parental
rights," N.J. Div. of Youth & Fam. Servs. v. A.G., 344 N.J. Super. 418, 434
(App. Div. 2001), because the Division was still assessing Christine and Yara
for placement at the time of trial. 24
The evidence shows the Division began assessing Christine when she was
first presented in July 2019, but Christine delayed the process by proposing "to
allow" her boyfriend to live in her home. "[S]he decided . . . not . . . to allow
[it]" in December 2019, and the Division again began "assess[ing her] by
24
Laura's claim the court erred by finding KLG was inappropriate because it
based its determination on "third[-]party testimony" that the children's resource
parents were committed to adoption lacks merit. First, defendants did not object
at trial to the testimony, which otherwise established the children's resource
parents were firmly committed to adoption. The court was therefore able to
properly rely on the testimony. See M.C. III., 201 N.J. at 341-42. Moreover,
the record on appeal contains letters from both children's resource parents
indicating their intention to adopt the children. The court correctly concluded
KLG was not a reasonable alternative to adoption. See N.J.S.A. 3B:12A-1(c)
(providing KLG is only appropriate "where adoption is neither feasible nor
likely").
42 A-2819-19
herself." Yara received a rule-out letter in December 2019 because she was only
"willing to be assessed . . . in the event that . . . [Christine did] not become
licensed." The Division considered several of defendants' other relatives as
alternative caregivers, each of whom was ruled out and did not appeal those
determinations.
"Because . . . children have an essential and overriding interest in stability
and permanency, it is inimical to their welfare that their legal status remain
unresolved." In re Guardianship of J.C., 129 N.J. 1, 26 (1992). Thus, "Family
Part judges conducting termination of parental rights proceedings must be
mindful of the need for prompt determination of the difficult issues before
them." N.J. Div. of Child Prot. & Permanency v. R.L.M., 236 N.J. 123, 146-47
(2018). Accordingly, N.J.S.A. 30:4C-15.2 mandates that "[a] final hearing for
guardianship shall be held within three months from the date the petition is
filed," which in this case was in August 2019. The court issued its decision
terminating defendants' parental rights on February 25, 2020. In light of these
principles, we find no error in the court rendering its decision prior to the
Division completing its assessment of Christine. See ibid.; R.L.M., 236 N.J. at
146-47; J.C., 129 N.J. at 26.
43 A-2819-19
Finally, the court's determination that termination of defendants' parental
rights will not do more harm than good is similarly supported by substantial
credible evidence. The main inquiry on the fourth prong "is whether, after
considering and balancing the two relationships, the child[ren] will suffer a
greater harm from the termination of ties with [defendants] than from the
permanent disruption of [the children's] relationship with [their resource]
parents." K.H.O., 161 N.J. at 355; see also N.J. Div. of Youth & Fam. Servs. v.
F.M., 211 N.J. 420, 453-54 (2012) (holding termination of the defendant's
parental rights would not do more harm than good where the child's attachment
to the resource parent was stronger than the child's attachment to the legal
parent); N.J. Div. of Child Prot. & Permanency v. N.C.M., 438 N.J. Super. 356,
372-73 (App. Div. 2014) (concluding the Division satisfied the fourth prong
with expert testimony that the children had developed a "secure[] attach[ment]"
to their resource parent but had only an "insecure attachment" to their legal
parent).
The uncontroverted evidence established Kira is "not securely attached
to" defendants but "is securely attached to her [resource parent]"; Kira "would
suffer . . . significant and enduring harm" if her relationship with her resource
parent is severed; and Cara "would likely" suffer harm if the relationship with
44 A-2819-19
her resource parents is severed, which defendants are unable to mitigate, but her
resource parents "would likely serve to mitigate any [harm] she may experience
through the loss of" her relationship with defendants. The court's determination
the Division satisfied the fourth prong is amply supported by the record. 25 See
K.H.O., 161 N.J. at 355; F.M., 211 N.J. at 453-54; N.C.M., 438 N.J. Super. at
372-73.
To the extent we have not addressed any of defendants' remaining
arguments, they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
25
We also note that under the fourth prong, "the child[ren's] need for
permanency and stability emerges as a central factor." K.H.O., 161 N.J. at 357.
While this prong is typically required to be satisfied by expert testimony based
on a comparison of bonding evaluations, see N.C.M., 438 N.J. Super. at 371,
bonding evaluations are not required where termination is "not predicated upon
bonding, but rather reflect[s the children]'s need for permanency and [the
parents'] inability to care for [the children] in the foreseeable future," B.G.S.,
291 N.J. Super. at 593. Here, the court found defendants have been unable to
parent the children for the majority of the children's lives; the children have
suffered from a lack of permanency as a result; and defendants are unable to
care for the children in the foreseeable future. These findings are supported by
substantial credible evidence, and they further, and independently, support the
court's determination on the fourth prong. See ibid.
45 A-2819-19