RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1540-21
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION October 25, 2023 Plaintiff-Respondent, APPELLATE DIVISION
v.
D.A.,
Defendant-Appellant/ Cross-Respondent,
and
L.A.,
Defendant. _______________________________
IN THE MATTER OF THE GUARDIANSHIP OF I.E. and H.E., minors,
Cross-Appellants. _______________________________
Argued September 27, 2023 – Decided October 25, 2023
Before Judges Rose, Smith1 and Perez Friscia.
1 Judge Smith did not participate in oral argument but joins the opinion with consent of the parties. R. 2:13-2(b). On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-0134-20.
Ryan T. Clark, Designated Counsel, argued the cause for appellant/cross-respondent (Joseph E. Krakora, Public Defender, attorney; Ryan T. Clark, on the briefs).
Jessica Steinglass, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Christina Duclos, Deputy Attorney General, on the brief).
Neha Gogate, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Meredith Alexis Pollock, Deputy Public Defender, of counsel; Neha Gogate, of counsel and on the brief).
The opinion of the court was delivered by
ROSE, J.A.D.
Defendant D.A. appeals from a January 7, 2022 judgment of guardianship
terminating her parental rights to her two biological children: I.E. (Isiah), born
in August 2016; and H.E. (Helen), born in November 2017.2 The judgment also
terminated the rights of the children's biological father, L.A. (Lou), who was
incarcerated at the time of trial and refused to appear. Lou does not appeal from
2 Consistent with the parties' briefs, we use initials and pseudonyms to protect the confidentiality of these proceedings. R. 1:38-3(d)(12). A-1540-21 2 the judgment or otherwise participate in this appeal. Significantly, however,
Lou's violent assaults against his biological son, S.E. (Sean), born in September
2007, underpin the precipitating event that led to the guardianship complaint.
At that time, Sean, and Lou's biological daughter, H.E. (Hallie), born in July
2006, resided in Bayonne with defendant, Lou, Isiah, and Helen. 3
Following a multi-day trial and written submissions of the parties, the
judge issued a lengthy written decision finding the Division of Child Protection
and Permanency satisfied all four prongs of the "best interests of the child" test,
N.J.S.A. 30:4C-15.1(a)(1) to (4), by clear and convincing evidence.
Accordingly, the judge held termination was in the children's best interests. See
In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).
Defendant does not challenge the judge's conclusion that the Division
satisfied the first prong, i.e., the "child[ren]'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). That determination was supported by "[t]he pervasive abuse
that went on in the family home while I[siah] and H[elen] were present."
Instead, defendant argues the judge erroneously determined the Division proved
3 In March 2020, Sean and Hallie were returned to the custody of their biological mother, M.H., none of whom are parties to this appeal.
A-1540-21 3 the remaining three prongs by clear and convincing evidence, N.J.S.A. 30:4C -
15.1(a)(2) to (4). Because Isiah has severe autism and special needs, defendant
claims it is highly unlikely the Division will find him a permanent home and she
is in the best position to care for both children.
The children's law guardian cross-appeals, challenging the second, third,
and fourth prongs of the best interests test. The law guardian urges us to reverse
the judgment because there is no viable permanency plan for the children and
the judge relied on inadmissible hearsay testimony and lay opinion to find there
were no alternatives to termination under prong three.
Based on our review of the record and applicable law, we are satisfied the
evidence in favor of the guardianship petition supports the judge's finding that
the Division established the challenged second prong, i.e., "[t]he 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," N.J.S.A. 30:4C-15.1(a)(2); and the
first part of the third prong, i.e., "[t]he [D]ivision has made reasonable efforts to
provide services to help the parent correct the circumstances which led to the
child's placement outside the home," N.J.S.A. 30:4C-15.1(a)(3). However, we
cannot discern on this record whether the Division satisfied its burden to explore
A-1540-21 4 alternatives to termination under the second part of the third prong, which in
turn impacts the judge's finding on the fourth prong, whether "[t]ermination of
parental rights will not do more harm than good." N.J.S.A. 30:4C -15.1(a)(4).
Accordingly, we affirm in part, and reverse and remand in part for proceedings
consistent with this opinion.
I.
A. The Evidence Adduced at Trial
The guardianship trial spanned six days during November and December
2021. The Division moved into evidence more than 100 exhibits and presented
the testimony of five witnesses, including three caseworkers and an expert in
psychology. Defendant did not testify but called her own psychology expert.
On behalf of the children, the law guardian presented the testimony of another
psychology expert. Defendant and the law guardian moved into evidence their
experts' reports; the law guardian submitted various reports on behalf of Isiah.
The voluminous evidence adduced at trial was discussed in the judge's opinion
and need not be repeated in the same level of detail. We recount the most
significant evidence to provide context to the issues raised on appeal.
On March 21, 2019, eleven-year-old Sean was admitted to the Jersey City
Medical Center with life-threatening injuries, including "a subdural hematoma
A-1540-21 5 with severe brain bleeding" that required emergency surgery. Sean's doctors
noted the child's injuries were in various stages of healing and were inconsistent
with Lou's account that Hallie had pushed Sean into the wall the evening prior
to his hospitalization.4
Initially claiming Lou was not home when the incident occurred,
defendant said Hallie "beat[] S[ean] with the [phone] charger," then pushed him.
Defendant later changed her story, asserting: Lou was asleep at the time of the
incident; when Lou awoke, he fed Sean; and the couple then put Sean to bed.
The following morning, defendant remained home while Lou went to work.
Defendant said she attempted to wake Sean at 11:00 a.m. and 1:00 p.m., but both
times "he was unresponsive." Defendant called Lou, who picked up Hallie at
school before arriving home.5 Emergency services were not called to the home
4 Following his admission, the hospital registered Sean on an organ donation list. Although Sean survived, his treating physicians reported the child would experience problems communicating, eating, walking, and breathing . Accordingly, Sean would require multiple surgeries, hospitalization, and long- term care. 5 Although Hallie initially claimed she hit Sean, she ultimately acknowledged Lou physically abused Sean on the night in question and had abused Sean in the past. Hallie feared future abuse by Lou and defendant.
A-1540-21 6 until nearly 3:00 p.m. Police observed "blood on the wall and many droplets of
blood on the floor and in the tub." 6
The following day, defendant and Lou were arrested and charged with
child endangerment and related offenses. They were remanded to the county
jail, prompting the Division to conduct a Dodd removal 7 of Hallie, Isiah, and
Helen. Pertinent to this appeal, the court awarded the Division care, custody,
and supervision of Isiah and Helen. Diagnosed with autism, Isiah's behavior
made placement difficult. After a series of four brief placements, including
relatives, friends, and non-relatives, on July 8, 2019, Isiah and Helen were
placed with their current non-relative resource parent, who does not wish to
adopt or participate in kinship legal guardianship (KLG).
6 Inexplicably, defendant and Lou recorded the abuse inflicted on Sean. During the criminal investigation that followed, police extracted various videos and photographs from defendant's and Lou's cell phones. The images depicted the injuries to Sean's entire body, welts and swelling on his face, and blood on his clothing. The other children are visible in the background of some of the videos. The Division moved several images into evidence at trial. 7 A Dodd removal is an emergent removal of a minor without a court order pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd Act. See N.J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011). Sean was hospitalized at the time of the removal.
A-1540-21 7 Defendant and Lou were released from jail ten days after their arrest. The
Division's initial plan was reunification. The Division offered defendant
psychological and parenting evaluations, but her attorney advised against
completing the evaluations in view of the pending criminal charges.8
Accordingly, the Division was unable to effectuate services based on defendant's
specific needs until the criminal matter was resolved.
In the meantime, the Division explored placement of the children with
relatives in the United States if reunification did not occur, including reassessing
the relatives with whom the children briefly lived following their removal. All
relatives residing in this country were ruled out. Defendant also proposed her
parents in Dubai, an emirate within the United Arab Emirates (UAE). In August
2019, the Division made a referral to International Social Services (ISS) for an
in-home study; ISS thereafter approved the maternal grandparents' home.
Through ISS, the Division requested a child resource study and contacted an
autism center in Dubai to address Isiah's needs.
The Division provided defendant liberal supervised visitation with the
children. Although defendant spoke English and was able to communicate with
8 Lou similarly declined services. Because Lou does not appeal from the judgment, we focus instead on the Division's efforts regarding defendant. A-1540-21 8 the caseworkers, the Division made available an Arabic interpreter for meetings
and defendant's ensuing psychological evaluations. Notably, defendant did not
need housing assistance or transportation services, but the Division transported
defendant to the hospital for one of Isiah's procedures.
The Division also offered services for the children tailored to their needs,
including medical consultations and evaluations, play therapy, and daycare.
Although Helen was assessed by the early intervention program, she was
deemed ineligible for services. Diagnosed with autism spectrum disorder,
expressive language delay, and adjustment disorder, Isiah had difficulty
sleeping, threw tantrums, hit his head on objects, and bit himself and others.
The Division therefore referred Isiah to early intervention, speech therapy, and
applied behavioral analysis (ABA) therapy.
At trial, however, the adoption caseworker acknowledged the Division did
not provide ABA therapy until it was court ordered, and two years had transpired
before the therapy was implemented. The worker attributed the delay to the
Department of Developmental Disabilities, which was required to approve the
service prior to implementation by the Division. By the time of trial, all of
Isiah's court-ordered services were in place.
A-1540-21 9 Defendant attended most of Isiah's therapy appointments, was in regular
contact with Isiah's nurse, and attended his neurological evaluations.
Defendant's visits with the children were positive; there were no issues or
problems noted. Defendant also maintained a good relationship with the
resource parent.
Following a March 2, 2020 fact-finding hearing, the same judge who later
conducted the guardianship trial concluded defendant and Lou abused or
neglected the children. On March 13, 2020, defendant's mother arrived in the
United States from Dubai.
As part of the Division's planning, on April 20, 2020, the adoption
caseworker, Mariam Attia, met virtually with unspecified attorneys in Dubai.
One week later, the judge approved the Division's plan of termination of parental
rights followed by adoption. A few months later, defendant told the worker she
had filed for divorce from Lou, blaming him for her loss of custody.
On November 13, 2020, defendant pled guilty to second-degree
endangering the welfare of a child for her part in the abuse inflicted on Sean.
During her plea colloquy, defendant acknowledged she failed to call for medical
assistance after Lou severely injured Sean. A non-citizen of the United States,
defendant acknowledged her guilty plea could result in deportation. Sentencing
A-1540-21 10 was scheduled for January 15, 2021; defendant was accepted into the pretrial
intervention program. 9
Following disposition of defendant's criminal charges, the Division
scheduled her psychological evaluation at the Audrey Hepburn Children's House
(AHCH). In March 2021, defendant was referred to Wafa House, an
organization that provides therapeutic services to mostly Arabic-speaking
families. Defendant's referral included domestic violence and parenting
counseling. By the time of trial, defendant's services remained ongoing.
At the time of trial, the Division's plan for the children was termination of
parental rights followed by placement with their maternal relatives in Dubai.
Concurrently, the Division was exploring select home adoption.
Prior to the start of trial, the Division moved to "bifurcate" the
proceedings "in an effort to try to fully explore the possibility of transferring
custody to the[] relatives in Dubai." The Division sought findings on prongs
one and two only. Defendant, Lou, and the law guardian opposed the
application. Noting defendants were unwilling to consent to the transfer of
custody, the judge denied the Division's novel application.
9 On the same day, Lou pled guilty to two counts of endangering the welfare of a child and was thereafter sentenced to an aggregate ten-year prison term. A-1540-21 11 At trial, Attia testified that based on the Division's understanding "from
the various meetings with the consulate, as well as the attorneys in Dubai,"
adoption by the maternal relatives was not a viable option for the children. The
law guardian objected, asserting the "question asked for a legal expert opinion."
The judge sustained the objection on that ground and because the testimony
constituted hearsay. Nonetheless, the judge permitted the caseworker to testify
that Dubai law allowed "a custody arrangement." The judge overruled the law
guardian's renewed objection, concluding: "Layperson[s] can know that
information also." Attia thus testified Dubai required a "report indicating that
mom cannot currently care for H[elen] and I[siah]," and defendant's consent "to
transfer custody to [L.A., (Laura), the maternal aunt]." 10
By the time of trial, however, both parents had refused to give their
consent, and proposed return of the children to defendant. Attia acknowledged
that should the court terminate parental rights in this case – and the parents
continued to withhold consent – the Division would contact the Dubai attorney
"to figure out how to do a custody arrangement without [defendant's] consent."
10 Around March 2021, the maternal grandmother became ill and Laura, who resided with her parents, offered herself as an additional support for the children. A-1540-21 12 In the alternative, the Division's plan for the children was select home
adoption. However, Attia acknowledged it would be difficult to place Isiah in
an adoptive home in view of his behavioral issues. The Division had not begun
searching for a select home because the Division "cannot work on the select
home goal" when placement with relatives has not been ruled out.
Dr. Brett A. Biller, Psy.D., testified for the Division. As the mental health
director of AHCH, Dr. Biller supervised the clinicians who conducted
interviews, performed testing, and prepared reports for the Division. Dr. Biller
reviewed the recommendations and co-signed the reports. Defendant submitted
to two evaluations, by two different evaluators, each conducted over the course
of two non-consecutive days between January 2021 and October 2021.
Dr. Biller explained the test results administered to defendant. He noted
defendant deliberately presented herself in an overly positive fashion, which
invalidated some of the testing including the child abuse potential inventory .
For example, defendant displayed rigid parenting beliefs and an expectation of
compliance with those beliefs. Further, she "demonstrate[d] profound and
significant parental risk factors," i.e., "lack of insight and . . . lack of judgment"
concerning the harm she caused Sean. Defendant blamed the Division, Lou,
Sean, and Hallie, for the removal of Isiah and Helen. Yet defendant described
A-1540-21 13 Lou as "good-hearted" and "giving." Notably, defendant denied she witnessed
any violence in the home. When shown the video of her laughing at Lou's abuse
of Sean, defendant claimed she was laughing "to protect her children" by
distracting them from the abuse.
The second evaluation was conducted after defendant had engaged in
months-long therapy, yet she continued to minimize the situation that led to the
removal of the children and her role in Sean's injuries. There was "no
indication" that defendant demonstrated any personal gain since the first
evaluation. Although she finally acknowledged she feared Lou and that he
caused Sean's injuries, she failed to take any responsibility for Sean's injuries
and continued to lack understanding about the impact of that abuse on Isiah and
Helen. Defendant claimed she would protect her children but could not expla in
how she would do so. Accordingly, AHCH was concerned about defendant's
ability to empathize with children and understand their experiences.
Dr. Biller noted defendant cited her cultural differences to rationalize her
behavior, but he explained that the AHCH psychologists considered those
differences when conducting their analyses. He also acknowledged defendant:
participated in services; was employed; filed for divorce from Lou; expressed
concern that Isiah had not been receiving proper services since his removal; and
A-1540-21 14 believed she could provide a higher level of care to Isiah if the children were
returned to her custody.
Nonetheless, Dr. Biller opined that as of October 2021 – when the second
evaluation had been concluded – defendant "was not yet able to safely parent
her children unsupervised." AHCH further expressed concerns that defendant
would attempt to influence the children's recollection of their home life "to
enhance her best interests."
AHCH recommended that the Division concurrently work toward
reunification and termination of parental rights. Dr. Biller explained AHCH
"always will advocate for reunification when it's . . . [in] the best interests of the
children." Citing concerns for stability and permanency, however, Dr. Biller
testified the need to consider "different permanency options." He further stated
defendant should continue to receive the recommended services to determine
whether she made therapeutic progress and to assist her if her parental rights
were terminated.
Dr. Maha Younes, Ph.D., a psychologist and native Arabic speaker,
testified on behalf of the children. Dr. Younes conducted an evaluation of
defendant and bonding evaluations between her and the children in October and
December 2020, which were updated in October 2021.
A-1540-21 15 Dr. Younes opined that this matter must be evaluated through the lens of
cultural competency. She testified about defendant's history, noting she was
born in Palestine, lived in Dubai, her first marriage ended in divorce, and she
emigrated to the United States to marry her cousin, Lou. Further, from a cultural
standpoint, in Middle Eastern countries, the man is the head of the household
and his authority is undisputed. Any problems with defendant's second marriage
also would be considered a negative reflection on her. Defendant was expected
to respect Lou and refrain from interfering with his parenting of Sean and Hallie
because she is their stepparent. By contrast, defendant could express her opinion
about Lou's treatment of her biological children. Dr. Younes testified defendant
did nothing to help Sean from an "American perspective" because she did
nothing to intervene when Lou was abusing Sean.
Citing the test results performed on defendant, Dr. Younes testified
defendant was less anxious and depressed after she distanced herself from Lou
and took more responsibility for her part in the harm that befell the children. In
addition, defendant's understanding of her role in the family had become more
in line with "the laws of the United States." Defendant's test results did not
indicate any tendencies toward abusing children.
A-1540-21 16 During the first round of bonding evaluations, Isiah was unable to interact.
However, during the second round, Isiah was very attached to, and physically
affectionate with, defendant. Helen also engaged with defendant and even called
her, "mommy." Neither child wanted to separate from defendant at the end of
the evaluation. During the interactions, defendant was appropriate, positive, and
encouraging. Dr. Younes opined defendant and the children were "extremely
well-bonded," and defendant was "quite capable" of parenting both children.
Dr. Gerard A. Figurelli, Ph.D., an expert in psychology testified for
defendant. Dr. Figurelli conducted evaluations of defendant in September 2020,
October 2020, and August 2021, and performed his bonding evaluation with the
children in October 2020.
Dr. Figurelli diagnosed defendant with anxiety, depression, and dependent
personality traits. However, she was not dependent on any substances and did
not have any cognitive defects. Through therapy, defendant learned how to
defend herself and protect her children from abuse. She also learned how to
parent successfully. However, Dr. Figurelli recognized Isiah's autism was "quite
severe," which would create challenges and require defendant to undergo
additional parental training. Dr. Figurelli opined the bond between defendant
A-1540-21 17 and Helen was "significant" and "intact," and the bond between defendant and
Isiah was emotional and worth preserving.
B. The Trial Judge's Decision
In her written decision, the judge addressed the governing legal principles
in view of the evidence presented at trial, finding the Division satisfied all four
prongs of the "best interests of the child" test, N.J.S.A. 30:4C-15.1(a)(1) to (4)
by clear and convincing evidence. Assessing the credibility of the experts, the
judge "f[ound] Dr. Biller's testimony to be the most credible and persuasive of
all the expert witnesses." The judge elaborated:
The other experts downplayed [defendant's] role in the abuse and lost credibility when they claimed not to have seen [defendant] strike S[ean] with a partially full gallon of milk despite claiming that they watched the video. Upon observing the video admitted into evidence, this [c]ourt has no doubt that she st[r]uck him with it to which he recoiled.
The judge also found Dr. Younes "the least credible of all the experts ."
Noting the expert did not watch any of the videos, the judge discredited Dr.
Younes's opinion that defendant's involvement or lack of involvement in her
stepchildren's abuse had any bearing on defendant's "ability to parent her own
children." The judge further found the expert's opinion was based primarily on
A-1540-21 18 the information defendant disclosed to her. The judge "observed the witness to
be defensive and evasive on cross-examination by the Division."
The judge's credibility assessment of the experts informed her decision on
prong two. Referencing Dr. Biller's testimony, the judge was persuaded "the
same risk factors remained" even though defendant was afforded therapeutic
services between both AHCH evaluations. The judge further noted: "Even Dr.
Figurelli could not project[] when [defendant] would be ready for reunification."
The judge found the Division proved it made reasonable efforts to reunify
the family under prong three. The judge detailed the Division's efforts "to
provide services to the family beginning with the [Title 9] litigation," but noted
defendant "refused to comply with psychological evaluations" while her
criminal charges were pending. Thereafter, the Division referred defendant to
Wafa House for therapeutic services. Although defendant had been attending
those services since March 2021, the judge noted she had not "demonstrate[d]
any progress as of her AHCH reevaluation in October 2021." The judge also
rejected the law guardian's argument that insufficient services were provided to
the children. Noting the Division's statutory obligation under prong three is "to
assist the defendants in remedying the circumstances that led to placement of
A-1540-21 19 the children," the judge nonetheless summarized the services the Division
provided to Isiah and Helen.
The judge recognized "the Division's plan [was] to conduct a more
extensive search for a select home to adopt the children while continuing to work
with the relatives in Dubai." Regarding the second part of prong three, the judge
found the Division explored and ruled out placement with relatives in the United
States, but the maternal relatives residing in Dubai "have not been ruled out."
Nonetheless, the judge concluded, "There are no alternatives to termination of
parental rights." The judge explained:
Dubai will not recognize adoption or KLG but will recognize placement if the parents[] consent, which they have refused to give[,] and . . . the [c]ourt finds the children were abused and it is not safe to return the children to them. The children cannot continue to languish in a foster home that does not wish to be a permanent placement for them.
....
While there is an alternative to termination of parental rights placement with the relatives in Dubai, that option is only feasible if there is consent by the parents. Absent consent, there is no alternative.
[(Emphasis added).]
Finally, the judge found the Division proved the fourth best interests
prong. Citing the testimony of the competing experts, the judge concluded:
A-1540-21 20 Both children have remained in foster care since March 2019. Neither parent has corrected the reasons for the removal as stated throughout this decision. Despite the fact that Dr. Younes found that during the second bonding evaluation, H[elen] called defendant "mommy" and was "more engaged with her mother" and comfortable than the initial bonding evaluation, this can hardly be called a secure bond which if severed would do more harm than good. Likewise, I[siah] was "so attached" to his mother that the expert was surprised. How much of this is merely a comfort level with her as a familiar figure is unknown. The expert concluded that [defendant] was "well bonded" with her children. The [c]ourt has no doubt that [defendant] loves her children and desperately wants to be reunified with them but as Dr. Biller testified [defendant] has a poor prognosis for any meaningful change now or in the foreseeable future. Furthermore, it is unknown if or when she will be able to safely parent her children. Thus, as explained by Dr. Biller and found persuasive by this court she continues to pose a risk to their safety due to her lack of insight and judgment. It is in their best interest that termination be granted so that they can achieve permanency.
C. Post-Judgment Applications
Following the trial judge's decision, the matter was transferred to the Child
Placement Review docket (FC matter). This appeal and cross-appeal followed.
In June 2022, we granted defendant's emergent application for leave to
appeal from the denial of her motion to intervene in the FC matter. We then
summarily reversed the FC judge's decision, noting defendant "has court-
A-1540-21 21 ordered visitation nine hours per week," and the children "wish to continue
contact with their mother, but if the Division . . . prevails in its application, the
children would be placed outside the country." Accordingly, we held defendant
had standing to intervene in the FC matter.
In July 2022, the law guardian moved to remand the present appeal to the
trial court so the children could move to vacate the January 7, 2022 judgment
under Rule 4:50-1. The law guardian asserted: "Three months after the
judgment of guardianship was issued, the Division represented to the [FC] court
new information that parental consent is not required to transfer custody to
L[aura] in Dubai, UAE, and sought an order granting legal and physical custody
of [the children] to her." The law guardian thus argued a remand would permit
the trial court "to consider the current information relevant to its determination
to terminate [defendant]'s parental rights and the decision of whether custody
should be transferred to the maternal aunt in the UAE in the children's best
interest." The law guardian noted just prior to commencement of trial, the
Division was willing to bifurcate the trial to obtain a finding on the first two
prongs to attempt to obtain a custody transfer to Dubai in lieu of termination of
defendant's parental rights, but the judge was unwilling to do so because
A-1540-21 22 defendant did not consent to the transfer. As stated, however, both defendant
and the law guardian opposed the Division's pretrial application.
Defendant opposed the law guardian's remand motion, seeking instead "a
full remand after reversal of the [j]udgment" by this court. Defendant
maintained she opposed placement outside the United States, contending she
would never see her children again, thereby constituting a "de facto termination
of [her] parental rights because the UAE is not even a signatory to the [Hague
Convention on the Civil Aspects of International Child Abduction]."
The Division also opposed the law guardian's motion but cross-moved to
stay the appellate proceedings pending the FC court's hearing on its application
to transfer custody to the maternal aunt in Dubai. We denied both motions.
Following a plenary hearing, the court in the FC matter denied the
Division's application to transfer custody. According to its October 3, 2022
order, the court concluded it was not in Isiah's best interests to be moved out of
the country "at this time pending appeal."11 (Emphasis added).
11 The parties did not provide a transcript of the plenary hearing or the FC court's decision. A-1540-21 23 II.
Our review of a trial court's decision to terminate parental rights is limited.
N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014). We will
uphold the court's factual findings if they are "supported by adequate,
substantial, and credible evidence." Ibid. "Concomitantly, reviewing courts
should defer to the trial court's credibility determinations." Ibid. We do so
because the court "has the opportunity to make first-hand credibility judgments
about the witnesses who appear on the stand; it has a 'feel of the case' that can
never be realized by a review of the cold record." N.J. Div. of Youth & Fam.
Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Fam.
Servs. v. M.M., 189 N.J. 261, 293 (2007)). Our Supreme Court has reiterated
"a trial court's factual findings [in a guardianship action] 'should not be disturbed
unless they are so wholly unsupportable as to result in a denial of justice.'" N.J.
Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re
Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). However, we review the
trial court's legal interpretations de novo. R.G., 217 N.J. at 552-53.
A. Prong Two and Prong Three-Part One
Having reviewed the record with these standards in mind, we find no merit
in the arguments raised by defendant or the law guardian concerning the second
A-1540-21 24 prong and the first part of the third prong of the best interests test. We are
satisfied that the trial judge's factual and credibility findings as to these prongs
are supported by substantial credible evidence in the record, and her thorough
opinion amply addressed the issues. See R.G., 217 N.J. at 552. Defendant's
inability to eliminate the harm facing her children cannot reasonably be
attributed to any alleged deficiency on the part of the Division. The record
demonstrates the Division made reasonable efforts to provide services, facilitate
visitation, and address the children's needs. We therefore affirm the judge's
findings under these prongs for the reasons set forth in her written decision.
B. Prong Three-Part Two and Prong Four
We part company, however, with the trial judge's findings on the second
part of the third prong and her conclusion that termination of defendant's
parental rights "will not do more harm than good" under the fourth prong. We
do so for procedural and substantive reasons.
Initially, the judge's conclusion that there are no alternatives to
termination under the third prong was based on incompetent hearsay and lay
opinion adduced by the Division on direct examination of the adoption
caseworker. Over the objection of the law guardian, Attia testified about the
Division's understanding of UAE law, which was based on conversations with
A-1540-21 25 "the consulate" and "attorneys in Dubai." The judge correctly sustained the law
guardian's objection because the Division's question called for an expert legal
opinion and hearsay. Nonetheless, the judge cited that same incompetent
testimony to conclude that "Dubai will not recognize adoption or KLG but will
recognize placement [only] if the parents[] consent."
Although a trial court's evidentiary decisions are reviewed under the abuse
of discretion standard, N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J.
354, 366 (2017), and the danger of hearsay is mitigated in a bench trial, N.J.
Div. of Child Prot. & Permanency v. J.D., 447 N.J. Super. 337, 349 (App. Div.
2016), the admission of Attia's testimony constituted harmful error here. Indeed,
the feasibility of adoption or a KLG-type arrangement under UAE law is best
elicited through expert testimony pursuant to N.J.R.E. 702. Attia's testimony
was not based on her perception, see N.J.R.E. 701, and reiterated statements
made by out-of-court declarants, see N.J.R.E. 801(c). Accordingly, we conclude
the judge's prong three determination improperly relied on incompetent
evidence.
Moreover, it appears the testimony elicited by the Division at trial may
not have been accurate. Post-judgment, the Division has been exploring
placement with the maternal relatives in Dubai – in the absence of defendant's
A-1540-21 26 consent. Indeed, the FC court denied the Division's application while this appeal
was pending. As in N.J. Div. of Youth & Fam. Servs. v. T.S., 417 N.J. Super.
228, 247 (App. Div. 2010), we recognize our review of the trial judge's decision
in this case has been "aided by the benefit of time." Similar to that matter, where
a culmination of events post-judgment caused us to question an otherwise sound
decision by the trial court terminating a parent's rights, see id. at 249, here the
criteria for placement in Dubai appears to be at odds with the evidence presented
at trial, i.e., that defendant's consent was necessary for the children's placement
with the maternal relatives in Dubai.
Our jurisprudence recognizes two permanency options: KLG and
adoption. P.P., 180 N.J. at 507-08 (citing N.J.S.A. 3B:12A-1). Under the
second part of prong three, KLG is considered an alternative to termination of
parental rights that offers permanency and stability to a child residing with a
relative or kinship caregiver. See N.J. Div. of Youth & Fam. Servs. v. L.L., 201
N.J. 210, 222-25 (2010) (discussing the KLG Act and its intent). In the present
matter, because the Division's plan appears to be a form of KLG, the Division
has not clearly and convincingly proven all alternatives to termination have been
ruled out.
A-1540-21 27 Although we do not find the judge's finding on prong four "wide of the
mark" as of the time of the decision, in this unusual factual context, we must
reverse and remand as to prong four and the portion of prong three requiring the
court to consider alternatives to termination. The post-judgment developments
require a fresh inquiry. See T.S., 417 N.J. Super. at 249-50 (remanding for a
prong four inquiry based on post-trial developments). On remand, the judge
should consider whether adoption or a KLG-type custodial arrangement with the
maternal relatives in Dubai is feasible under UAE law after considering the
testimony from a qualified expert; and whether, under the current circumstances,
termination would not do more harm than good.
In reevaluating the second part of prong three, and prong four, the trial
judge is not foreclosed from considering whether defendant has continued
therapeutic services and whether she could safely parent the children in the
foreseeable future. We also leave to the judge's sound discretion whether
updated psychological evaluations and fresh testimony is required to assess
defendant's present ability to parent, and whether the evaluations or testimony
warrant a reassessment of prong two. See K.H.O., 161 N.J. at 348 (holding the
four prongs of the best interests test "are not discrete and separate; they relate
to and overlap with one another to provide a comprehensive standard that
A-1540-21 28 identifies a child's best interests"). However, we do not suggest a preference
either regarding whether to adduce further evidence or in the ultimate result.
In conclusion, we affirm the trial judge's decision as to prong two and the
first part of the third prong of the best interests test. Because the Division did
not present competent evidence regarding the second part of the third prong, we
cannot determine whether the Division has demonstrated there are no
alternatives to termination or that termination would not do more harm than
good under the fourth prong.
Accordingly, we remand the matter to the trial court to reopen the FG
matter for further proceedings consistent with this opinion. The remand
proceedings shall be conducted expeditiously.
Affirmed in part; reversed and remanded in part. We do not retain
jurisdiction.
A-1540-21 29