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NOT FOR PUBLICATION WITHOUT THE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-0485-23
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
A.N.B.,
Defendant,
and
H.D.W.,
Defendant-Appellant.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF
M.D.W. and A.W., minors.
_________________________
Submitted May 1, 2024 – Decided May 9, 2024
Before Judges Firko and Vanek.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FG-13-0051-23.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Bruce Pozu Lee, Designated Counsel, on the
briefs).
Matthew J. Platkin, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Julie Beth Colonna, Deputy
Attorney General, on the brief).
Jennifer Nicole Sellitti, Public Defender, Law
Guardian, attorney for minors (Meredith Alexis
Pollock, Deputy Public Defender, of counsel; Noel
Christian Devlin, Assistant Deputy Public Defender, of
counsel and on the brief).
PER CURIAM
Defendant H.D.W. (Harry) 1 appeals from the September 26, 2023
judgment of guardianship terminating his parental rights to his son, M.D.W.
(Michael), born in March 2021, and his daughter, A.W. (Ayanna), born in June
2022. After a trial, Judge Teresa Ann Kondrup-Coyle issued a sixty-eight-page
written opinion finding that plaintiff Division of Child Protection and
Permanency (Division) satisfied the four prongs of the best-interests-of-the-
1
We identify defendant and other parties by initials and pseudonyms to protect
confidential information in the record. R. 1:38-3(d)(12).
A-0485-23
2
child test set forth in N.J.S.A. 30:4C-15.1(a), justifying termination of Harry's
parental rights. We affirm.
I.
Factual Background
Judge Kondrup-Coyle's opinion reviewed the evidence in great detail. A
summary of her findings of fact will suffice here. Defendant A.N.B. (Astrid) is
Michael and Ayanna's mother. Ayanna passed away after the guardianship trial,
and her appeal was withdrawn. The Division first became involved with Harry
and Astrid in 2016 before Ayanna was born. Harry has been diagnosed with
autism and schizophrenia. Astrid suffered brain damage from a loss of oxygen
at birth and was diagnosed with bipolar disorder. Both defendants received
services from the Division of Developmental Disabilities (DDD) and Social
Security Disability Insurance assistance. The Division placed defendants' older
daughter, Abbie, who is not involved in this appeal, with Sam and Ophelia, the
paternal grandparents, at birth. Sam and Ophelia later entered into a Kinship
Legal Guardian (KLG) arrangement for Abbie.
Given both defendants' cognitive limitations, in December 2020, the
Division asked the hospital to notify it when Astrid gave birth to Michael. The
Division received a referral the day Michael was born and executed a Dodd
A-0485-23
3
removal.2 Michael was placed with Sam and Ophelia. Division caseworker
Jennifer Healy spoke to Astrid at the hospital and had concerns about her ability
to care for Michael. Astrid testified positive for fentanyl when Michael was
born and was experiencing mental health issues.
Healy met with Harry at the couple's apartment and observed it was
"filthy," "bug infested," in "complete disarray and was extremely cluttered" with
shoes at the door, toys, huge television sets, and gerbil cages and items
everywhere. There were cockroaches and trash throughout the kitchen and
unsanitary conditions in the apartment making it unsafe for a child. Harry and
Astrid had not previously permitted any Division caseworkers to go into the
apartment.
Sam and Ophelia did not want to enter a KLG arrangement with Michael
because Harry and Astrid caused them "distress and ongoing aggravation"
regarding the KLG-imposed visitation with Abbie. Harry advised the Division
2
"A 'Dodd removal' refers to the emergency removal of a child without a court
order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6 -
8.21 to -8.82. The Dodd Act was authored by former Senate President Frank J.
'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super.
593, 609 n.2 (App. Div. 2010).
A-0485-23
4
that he opposed Sam and Ophelia obtaining custody of Michael. No other
relatives were offered for assessment.
During the protective services litigation that followed, the judge continued
the Division's custody of Michael and ordered that Harry comply with services,
including a psychological evaluation. The Division provided Harry with bus
passes to travel to visits with Michael and to access services. Sam and Ophelia
had an "open door policy" and permitted liberal, supervised visitation at their
home. However, Harry complained about his relationship with them, and his
visitation dwindled over time.
Division caseworker Bryant Moore arranged to transport Harry to a visit
and to his psychological evaluation, but he did not comply. Moore observed
Harry speaking "very rapidly, stumbling over words, and going off topic" and
saying he felt "bullied by . . . everyone." The Division also provided Harry with
housing resources, which he declined.
In July 2021, Harry was evaluated by Todd Traina, Psy.D. Harry denied
having a learning disability, autism, or depression. Dr. Traina administered
intelligence testing to Harry, the Wechsler Abbreviated Scale of Intelligence and
the Million Clinical Multiaxial Inventory, which showed he was intellectually
impaired and "could impede his capacity to independently parent" or learn new
A-0485-23
5
parenting skills. Based on Dr. Traina's recommendation, Harry was referred to
Comfort Care for individual counseling, and the Division arranged for
therapeutic visits through the YMCA. Later, the YMCA terminated Harry for
noncompliance with visits.
In June 2022, the judge approved the Division's permanency plan of
termination of Harry's parental rights followed by adoption. That month, Astrid
gave birth to Ayanna. Harry was unaware Astrid was pregnant. The Division
emergently removed Ayanna and initially placed her with a non-relative
resource parent because Harry's paternity was questioned. After Harry
submitted to a paternity test and he was confirmed to be Ayanna's biological
father, she was transitioned to Sam and Ophelia's home, joining her siblings
Michael and Abbie. Harry objected, but the Division explored and ruled out
other relatives he suggested.
In July 2022, the Division filed for guardianship of Michael, and amended
its complaint to include guardianship of Ayanna. In October 2022, following a
visit at the Division's office with Ayanna, Astrid violently shook Ayanna in her
car seat in the Division's vehicle because she was crying. When the caseworker
tried to stop Astrid from getting in the car, she scratched him and screamed
racial slurs at him. Harry began yelling at the caseworker and threatened to kill
A-0485-23
6
him. The Division temporarily suspended visits due to Harry's and Astrid's
behavior. Thereafter, the Division visited Harry's apartment with police
assistance.
Harry was admitted to the hospital for suicidal ideations he made on
Facebook. After being discharged, he was referred for outpatient mental health
treatment. He refused to provide his therapist's name or sign a release form for
the Division. When he finally agreed to sign the release form, the records
obtained by the Division indicated that Harry inconsistently attended sessions
and was not regularly taking his psychotropic medication. In February 2023,
Ayanna was placed with Sam and Ophelia, who refused to enter into a KLG
arrangement due to issues with Harry and Astrid, coupled with their intention to
move to Florida.
In April 2023, a caseworker Jillian Lepore transported Harry to a bonding
evaluation conducted by Karen Wells, Psy.D. Dr. Wells observed Harry had
difficulty engaging with Michael and Ayanna at the same time. For example,
Harry did not notice that Ayanna put a crayon in her mouth, and he struggled
changing both children's diapers. The next month, Harry reported taking
psychotropic medication and seeing a psychiatrist.
A-0485-23
7
The Guardianship Trial
The judge held a three-day trial. Harry only attended briefly the first day.
The Division presented caseworkers—Moore, Healy, and Lepore—and Sam. In
addition, the Division presented expert testimony from Dr. Wells. The Law
Guardian agreed with the Division's plan. Harry did not present any witnesses.
Moore and Healy testified as stated above. Lepore testified that at the
time of trial, Harry was engaged in therapy and medication management, but he
could not provide his therapist's name and did not sign a release form to
authorize Lepore to speak to his therapist about his progress. Lepore testified
about her observations of Harry during Dr. Wells's bonding evaluation when he
struggled to supervise the children. Lepore stated that had Harry engaged in
therapeutic supervised visitation, he would have received "one-to-one guidance,
that helping hand, teaching [him]" to minimize safety risks during diaper
changes and addressing the need for supervision.
Dr. Wells testified as an expert in clinical and forensic psychology as it
relates to bonding and parental fitness. Although competent to participate at
trial, Dr. Wells found Harry "intellectually deficient." She opined that he had
"moderate cognitive limitations, particularly in the area of reasoning, logical
thinking and executive functioning," which were "chronic" and "lifelong." Dr.
A-0485-23
8
Wells diagnosed Harry with schizoaffective disorder and stated he was non-
compliant with taking medications. Based on Harry's prior evaluations by Dr.
Traina and others, Dr. Wells concluded he needed "guidance and direction to
assist him in his day-to-day living." Dr. Wells noted that Harry did not follow
through with services implemented for him "across the board," which was
"reflective of a need for a higher level of care."
Dr. Wells testified that Harry needs assistance managing money and
maintaining appointments. She explained that Harry's communication skills
were also impacted, he often misinterpreted a situation, and felt misunderstood.
Dr. Wells opined Harry had "no awareness" that Sam and Ophelia were
successfully caring for his children, but he could not. Regardless of whether he
engaged in therapy, Dr. Wells concluded that Harry would not be "able to
assume a parental role" because he could not manage a child's life. Dr. Wells
opined Harry would be unable to safely parent in the future, and there were no
services available to improve his condition.
On the issue of permanency, Dr. Wells concluded that Sam and Ophelia
understood their roles in serving as the children's primary parental figure s in
light of Harry's cognitive limitations. Dr. Wells added that Michael and Ayanna
deserved permanency with Sam and Ophelia, who have demonstrated their
A-0485-23
9
"ability to provide continuity of care" with their sister Abbie and "to have liberal
contact" with Harry.
Dr. Wells "strongly" considered KLG because Sam and Ophelia had an
"open door policy" with visitation. But Dr. Wells opined that KLG was not in
Michael and Ayanna's best interests because of Harry's noncompliance with
services, his failure to visit the children, and the difficulties Sam and Ophelia
experienced regarding Abbie's KLG arrangement. Dr. Wells concluded that
adoption would provide the children with the stability they need.
Sam testified that the Division had advised him and Ophelia about the
differences between KLG and adoption. Sam expressed frustration with the
KLG arrangement with Abbie and felt Harry and Astrid "used KLG to bully us."
Sam stated Harry and Astrid were unappreciative of his and Ophelia's care of
the children and their efforts to facilitate visitation. Going forward, Sam
testified he could no longer tolerate numerous "interruptions with the parents,"
welfare checks, and allegations he and Ophelia were not properly caring for the
children, which would continue under a KLG arrangement. Sam stated that
adoption would provide Michael and Ayanna with "a stable home."
A-0485-23
10
The Judge's Decision
The judge issued detailed findings with respect to each of the statutory
prongs in N.J.S.A. 30:4C-15.1(a). The judge found the Division's witnesses
were "credible," had an "independent recollection of the case," and that: (1)
Harry's parental relationship with Michael and Ayanna endanger[ed] the
children's safety, health, or development because of his mental illness, cognitive
limitations, and inability to meet even the children's most basic needs; (2)
Harry's behavioral issues, refusal to comply with services, failure to consistently
visit the children without an ability to appraise his own situation, and
acknowledge his limitations heightens the risk of harm were the children to be
in his care; (3) Harry is unwilling or unable to address the risk of harm his
parental relationship presents to Michael and Ayanna, despite the reasonable
efforts of the Division to offer Harry services related to the causes of that risk
of harm; (4) a delay in permanent placement will add to the harm the children
face; and (5) termination of Harry's parental rights will not do more harm than
good.
The judge emphasized that multiple service providers noted "consistent
and significant concerns regarding [Harry's] mental capacity and ability to meet
even the most basic needs of a child." The judge found the Division proved that
A-0485-23
11
Harry was "unwilling and unable to remedy the unaddressed and significant
mental and cognitive limitations that caused each of [the] children to be
removed."
This appeal followed. Harry does not challenge the judge's finding that
the children's safety, health, or development have been or will continue to be
endangered by the parental relationship under prong one; or that he failed to
mitigate harm under prong two; or the adequacy of services under part one of
prong three; or that terminating his parental rights would not do more harm than
good under prong four. Harry raises two discrete issues on appeal:
(1) the judge's determination that the paternal
grandparent, Sam, unequivocally rejected KLG is no
longer adequately supported by the record because
his concerns primarily involved Astrid, who has
passed away; and
(2) the judge erred in admitting Dr. Traina's findings
as to what would constitute reasonable services into
evidence without his testimony, thus admitting
inadmissible hearsay, violating Harry's right to
confront Dr. Traina, and prejudicing Harry's ability
to challenge whether the Division's efforts under
prong three were reasonable.
The Law Guardian seeks affirmance.
A-0485-23
12
II.
With respect to Harry's appeal, our scope of review is limited. N.J. Div.
of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007). We will uphold a
trial judge's factfindings if they are "supported by adequate, substantial, and
credible evidence." N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527,
552 (2014). "We accord deference to factfindings of the family court because it
has the superior ability to gauge the credibility of the witnesses who testify
before it and because it possesses special expertise in matters related to the
family." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 448 (2012);
see 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." N.J. Div. of Youth & Fam. Servs. v.
E.P., 196 N.J. 88, 104 (2008) (quoting G.L., 191 N.J. at 605). We also accord
deference to the judge's credibility determinations "based upon his or her
opportunity to see and hear the witnesses." N.J. Div. of Youth & Fam. Servs. v.
R.L., 388 N.J. Super. 81, 88 (App. Div. 2006). No deference is given to the
court's "interpretation of the law" which is reviewed de novo. D.W. v. R.W.,
212 N.J. 232, 245-46 (2012).
A-0485-23
13
When terminating parental rights, the court focuses on the "best interests
of the child standard" and may grant a petition when the four prongs set forth in
N.J.S.A. 30:4C-15.1(a) are established by clear and convincing evidence. In re
Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). "The four criteria
enumerated in the best interests standard are not discrete and separate; they
relate to and overlap with one another to provide a comprehensive standard that
identifies a child's best interests." Id. at 348.
N.J.S.A. 30:4C-15.1(a) requires the Division to prove:
(1) The child's safety, health, or development has been
or will continue to be endangered by the parental
relationship;
(2) The parent is unwilling or unable to eliminate the
harm facing the child or is unable or unwilling to
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm.
Such harm may include evidence that separating the
child from his resource family parents would cause
serious and enduring emotional or psychological harm
to the child;
(3) The Division 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.
A-0485-23
14
The considerations involved are especially "fact sensitive and require
particularized evidence" addressing the specific circumstances present in each
case. K.H.O., 161 N.J. at 348.
We first address Harry's argument that Astrid's passing constituted a
substantial post-judgment change in circumstances. Harry asserts that Sam and
Ophelia rejected KLG for Michael and Ayanna and seek adoption out of their
concerns for Astrid, not him, as a parent. Harry now seeks a remand to
determine whether Sam and Ophelia still favor adoption over KLG in light of
Astrid's passing and whether termination of Harry's parental rights is still in
Michael's and Ayanna's best interests.
In support of his argument, Harry relies on our decision in New Jersey
Division of Youth & Family Services v. T.S., 417 N.J. Super. 228 (App. Div.
2010), where the mother's parental rights were terminated. Post-trial, the mother
continued to alleviate the harms that led to the child's removal and supported
her ability to achieve reunification. Id. at 246-47. Further, safety concerns arose
necessitating the termination of the child's anticipated adoption placement. Ibid.
We remanded to the Family Part for an additional review of "these additional
facts, . . . not present at the time of trial, [but which] must nevertheless be
A-0485-23
15
assessed before a conclusion can be drawn that termination will do more harm
than good." Id. at 249.
We concluded in T.S. that "[i]t is unusual to have such a culmination of
events, which when taken together, call into question whether the possible
detriment posed by keeping the parent-child relationship intact is outweighed by
the potential benefits of terminating [the mother's] parental rights." Ibid. Unlike
T.S. however, there has been no change in Harry's ability or willingness to be
"up to the task" of parenting.
Harry has never provided a safe and stable home for Michael and Ayanna.
Moreover, Harry has never had custody of these children. Instead, the unrefuted
evidence showed that Harry "require[s] extensive and lifelong support to
provide for [his] own needs" and "[n]o service, support, intervention, or program
could alter [his] limitations" and render him a capable parent. Harry's attempt
to draw parallels between T.S. with the facts at hand warranting a remand is
unsupported by the evidence. There are no current new facts presented by Harry
to warrant a remand to reexamine the record. T.S. is simply not on point here.
We are satisfied that Astrid's passing does not warrant a reevaluation of
the third prong. The caseworker testified that Sam and Ophelia are "very
adamant" about adopting Michael and Ayanna instead of entering a KLG
A-0485-23
16
arrangement as they did with Abbie. Sam unequivocally testified that he and
Ophelia want to adopt Michael and Ayanna and not pursue KLG. Sam testified
that Astrid and Harry "use[d] KLG to bully [him and Ophelia]. And that's what
they've done in the past. And I don't want to be bullied anymore. It just doesn't
work for us." Sam elaborated on his reason to adopt:
Because [Michael and Ayanna] need to be loved and
they need a stable home. They need to recognize who
their family is . . . . [T]hey're much better off with us.
We're more . . . established . . . . [W]e have five other
children. We have a total of [thirteen]
grand[children]—and that's including [Abbie]. The
parents are—from my opinion, just not up . . . for the
task.
Contrary to Harry's assertion, Sam (and Ophelia) did not limit their
concerns to Astrid only but clearly expressed their preference for adoption over
KLG because of reprehensible behavior exhibited by both Harry and Astrid.
Therefore, Astrid's passing does not constitute a changed circumstance.
Moreover, Harry has a history of becoming agitated and making threats
concerning the use of a gun. Sam testified that he had to set limits with visitation
because Harry and Astrid "both lash out," and Harry would show up very late in
the evening for visitation. We discern no basis for a remand to reevaluate prong
three.
A-0485-23
17
III.
We next address Harry's final contention that the judge's reliance on
inadmissible hearsay by admitting Dr. Traina's evaluation without having him
testify was prejudicial and constituted reversible plain error. At trial, the
Division proffered Dr. Traina's evaluation only as to his recommendation on
reasonable services for Harry. Over objection by Harry's counsel, the judge
ruled the evaluation was admissible for the limited purpose of establishing what
recommendations Dr. Traina made in order to show the referrals the Division
made and services it offered relative to prong three. The judge elaborated that
Dr. Traina's recommendations would be considered to show that the Division
provided services, not for the truth asserted.
We "apply a deferential standard of review to the trial court's evidentiary
rulings." State v. Hyman, 451 N.J. Super. 429, 441 (App. Div. 2017). "The
necessity for, or propriety of, the admission of expert testimony, and the
competence of such testimony, are judgments within the discretion of the trial
court." State v. Zola, 112 N.J. 384, 414 (1988). "[T]he admission or exclusion
of evidence is within the discretion of the trial court." State v. Torres, 183 N.J.
554, 567 (2005).
A-0485-23
18
Hearsay is an out-of-court statement offered for the truth of the matter it
asserts. State v. Gore, 205 N.J. 363, 375 (2011) ("[o]ur hearsay rules of evidence
clearly provide that 'a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted' is inadmissible unless encompassed by one of the stated
exceptions to the rule precluding hearsay testimony" (citation omitted)).
Hearsay is not admissible under N.J.R.E. 802, subject to exceptions as outlined
in N.J.R.E. 803-804, and when the Confrontation Clause is implicated, as
discussed in Crawford v. Washington, 541 U.S. 36 (2004).
"However, hearsay is not admissible substantively as establishing the truth
of the statement." State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div.
2002), aff'd and remanded, 177 N.J. 229 (2003). In Vandeweaghe, we found
prejudicial an expert witness' testimony that consisted of extensive hearsay
regarding the defendant's life, habits, and history. 351 N.J. Super. at 478-79,
483-84. The expert's "recitation of hearsay" denied the defendant his
confrontation rights. Id. at 483.
Unlike in Vandeweaghe, Judge Kondrup-Coyle did not consider Dr.
Traina's psychological findings for the truth of the matter asserted and did not
recite hearsay to terminate Harry's parental rights. Rather, the judge only
A-0485-23
19
considered the evaluation for the limited purpose the Division made reasonable
efforts to provide services to Harry under prong three. Because the judge did
not rely on actual hearsay, the judge properly admitted Dr. Traina's evaluation
and there was no prejudice.
Further, Dr. Traina's evaluation was admissible under Rule 5:12-4(d),
which states: "The Division . . . shall be permitted to submit into evidence,
pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or
professional consultants. Conclusions drawn from the facts stated therein shall
be treated as prima facie evidence, subject to rebuttal."
Dr. Traina qualifies as a professional consultant and his evaluation was
admissible under Rule 5:12-4(d). In his reply brief, Harry avers that even if
Rule 5:12-4(d) is applicable, Dr. Traina's evaluation should still be barred
because the evaluation is not trustworthy. Harry claims the evaluation is not
trustworthy because Dr. Traina concluded that Harry has cognitive limitations ,
with an IQ of 60, but Harry was deprived of an opportunity to counter whether
any of his medications and mental health disorders artificially lowered his IQ.
However, as stated, Dr. Traina's opinion and diagnoses were not
considered by the judge and not admitted into evidence. Moreover, counsel did
A-0485-23
20
not raise an objection based on Confrontation Clause grounds, and therefore
waived the right to make that claim on appeal.
The right to confrontation may be waived for failure to object to the
offending evidence. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313 n.3
(2009); accord State v. Williams, 219 N.J. 89, 98 (2014). The defendant must
raise his or her Confrontation Clause objections. Melendez-Diaz, 557 U.S. at
327; accord Williams, 219 N.J. at 99. Here, in short, Harry failed to raise or
preserve his Confrontation Clause claim. That claim is waived.
We therefore affirm the September 26, 2023 judgment of guardianship
substantially for the reasons stated in Judge Kondrup-Coyle's comprehensive
opinion. Harry's additional arguments are without sufficient merit to warrant
further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-0485-23
21