DCPP v. T.U.R., J.F. AND K.C., IN THE MATTER OF THE GUARDIANSHIP OF K.A.T.R. AND K.A.M.C. (FG-07-0068-20, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 20, 2022
• Docket: A-3330-20
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3330-20

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

T.U.R. and J.F.,

Defendants,

and

K.C.,

Defendant-Appellant. ___________________________

IN THE MATTER OF THE GUARDIANSHIP OF K.A.T.R. and K.A.M.C., minors. ___________________________

Submitted June 7, 2022 – Decided June 20, 2022

Before Judges Fisher and Smith. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0068-20.

Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the briefs).

Matthew J. Platkin, Acting Attorney General, attorney for respondent (Donna Arons, Assistant Attorney General, of counsel; Nicholas Dolinsky, 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

I.

T.U.R. (Tamar) and K.C. (Kevin) are the biological parents of K.A.M.C.

(Kay), who was born December 24, 2015. 1 Tamar executed a voluntary

surrender of Kay on December 9, 2020, and she is not a party to this appeal.

Kevin appeals the Family Part’s June 30, 2021 order and judgment terminating

his parental rights to Kay. After carefully reviewing the record in view of the

applicable legal principles, we reject Kevin's contentions and affirm.

1 We use initials and fictitious names to protect the identity of the parties and family members. R. 1:38-3(d)(12). A-3330-20 2 The Division of Child Protection and Permanency (Division) became

involved with Kay in November 2017 when it instituted a safety protection plan

(SPP) because of its concerns about Tamar's ability to care for Kay and her

sister, Kim.2 The Division's concerns arose when Tamar began displaying

deficits in her mental health and cognitive functioning. While she remained the

primary caregiver for Kim and Kay, the SPP required Tamar to be supervised

with her children at all times by other approved family members. When Tamar

violated the SPP in December 2017 by taking her children with her to a friend’s

home unsupervised, the Division executed a Dodd removal, placing Kay and

Kim in a resource home. 3

After the Dodd removal, the Division ordered Kevin to attend a series of

screening and evaluation appointments. He was permitted three supervised

visitations per week with Kay. On January 30, 2018, Kevin was arrested and

charged with possession of a controlled substance, to which he pled guilty and

was sentenced to two years of probation. During the remainder of 2018, Kevin

repeatedly missed his evaluation appointments, consequently the court

2 Kim is not the biological child of Kevin. She is not a party to this litigation. 3 A "Dodd removal" refers to the emergency removal of a child from a home without a court order as authorized by the Dodd Act. N.J.S.A. 9:6-8.21 to -8.82. A-3330-20 3 suspended Kevin's visitation with Kay. By mid-summer, the Division

caseworker assigned to the matter had lost contact with him.

Nonetheless, the trial court rejected the Division's termination plan in

February 2019, giving Kevin fresh opportunities to re-engage with services. To

that end, he completed a psychological evaluation with Dr. Alison Winston,

Ph.D. Dr. Winston administered a series of tests designed to inventory and

assess the subject's personality, parenting skills, and potential for child abuse.

Based on the test results, Dr. Winston recommended supervised visitation, as

well as treatment programs targeted to mental health, substance use disorders

and individual psychotherapy.

In March 2019, Kevin began attending supervised visits with Kay.

Unfortunately, by late May, Kevin stopped visiting his child, and the rest of

2019 passed by without any further visits or communication between father and

daughter. In addition to missing his visits with his daughter, Kevin failed to

complete any of the services recommended by Dr. Winston.

In November 2019, the trial court conducted a permanency hearing and

approved the Division’s plan for termination of parental rights followed by

adoption. It found that after two years of litigation, Kevin still lacked the ability

A-3330-20 4 to parent Kay despite the Division’s reasonable efforts to effectuate

reunification.

The Division filed its complaint for guardianship on January 17, 2020 ,

naming Kevin as a co-defendant. Mark Singer, Ph.D., conducted a bonding

evaluation of Lana4 and Kay, however he could not complete a bonding

evaluation of Kevin and Kay because Kevin failed to attend the appointment.

At the trial, the Division presented two witnesses, Division worker

Tanisha Campbell and Dr. Singer. Kevin presented no evidence or witnesses.

The trial court found Campbell credible and qualified Dr. Singer as an expert

over the objections of Kevin's counsel. The court made extensive factual

findings based on the documentary evidence submitted by the Division as well

as the testimony of Campbell. It found Dr. Singer's testimony "to be clearly

consistent" with those factual findings and determined that his opinions and

findings "conformed to his experience and demonstrated knowledge in [his]

field." Ultimately, the court credited his testimony given at trial.

On July 21, 2021, the trial court issued a written decision, terminating

Kevin’s parental rights and finding that the Division met all four prongs of

N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Kevin appealed,

4 Lana is the maternal great grandmother of Kay and Kim. A-3330-20 5 arguing that the trial court erred by: (1) misapplying the law as it related to him,

a "non-target" parent, and (2) admitting the testimony of Dr. Singer, whom

Kevin argues should not have qualified as an expert.

II.

The legal framework regarding the termination of parental rights is well-

settled. Parents have a constitutionally protected right to the care, custody and

control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re

Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, that right is not

absolute. N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 553 (2014);

N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 599 (1986). At times,

a parent's interest must yield to the State's obligation to protect children from

harm. N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 397 (2009); In

re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate these concerns, the

Legislature created a test for determining when parental rights must be

terminated in a child's best interests. In order to obtain parental termination,

N.J.S.A. 30:4C-15.1(a) requires the Division prove by clear and convincing

evidence the following four prongs:

(1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship;

A-3330-20 6 (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;

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

[See also A.W., 103 N.J. at 604-11.]

The four prongs of the test are not "discrete and separate" but "relate to

and overlap with one another to provide a comprehensive standard that identifies

a child's best interests." K.H.O., 161 N.J. at 348. "The considerations involved

in determinations of parental fitness are 'extremely fact sensitive' and require

particularized evidence that address the specific circumstances in the given

case." Ibid. (quoting In re Adoption of Child. by L.A.S., 134 N.J. 127, 139

(1993)).

Our review of a family court's factual findings is limited. Cesare v.

Cesare, 154 N.J. 394, 411 (1998). "When a biological parent resists termination

of his or her parental rights, the [trial] court's function is to decide whether that

parent has the capacity to eliminate any harm the child may already have

A-3330-20 7 suffered, and whether that parent can raise the child without inflicting any

further harm." N.J. Div. of Youth & Fam. Servs. v. R.L., 388 N.J. Super. 81, 87

(App. Div. 2006).

We accord deference to fact-findings of the Family Part "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) (citing

Cesare, 154 N.J. at 413). "We recognize that the cold record, which we review,

can never adequately convey the actual happenings in a courtroom." Ibid.

(citing N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)). We

will not overturn a family court's fact-findings unless they are so "wide of the

mark" that our intervention is necessary to correct an injustice. Ibid. (quoting

N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007)). It is not

our place to second-guess or substitute our judgment for that of the Family Part,

provided that the record contains substantial and credible evidence to support

the decision to terminate parental rights. Id. at 448-49.

III.

We affirm substantially for the reasons set forth in the cogent and detailed

fifty-eight-page opinion of Judge Linda Lordi Cavanaugh, who found that the

A-3330-20 8 Division proved each element of N.J.S.A. 30:4C-15.1(a) by clear and convincing

evidence. We briefly address Kevin's points on appeal.

Kevin argues that as a "non-target" parent, that is, the parent who was not

the subject of the Dodd removal action, he should have been given "primacy of

consideration for placement of his child, especially as [the Division] had already

concluded Tamar was not a viable option." Kevin further argues that the trial

court's failure to consider him first as a placement option somehow tainted the

rest of its parental rights termination analysis under N.J.S.A. 30:4C-15.1(a)(1)

to (4). We are not persuaded. While Kevin was never selected by the Division

as a placement option for Kay, the Division spent more than two years

attempting to engage Kevin with recommended services designed to equip him

with parenting tools. The record shows that Kevin repeatedly rejected the

Division's efforts, failing to appear for supervised visits with Kay, skipping

appointments for drug screenings, psychological evaluations, and even turning

away a home evaluator who came to his residence.

While Kay was not initially removed from his home, Kevin was named as

a defendant in the guardianship complaint. He participated through counsel at

trial. After trial, the court made findings and properly applied the law to each

A-3330-20 9 prong of the statute in reaching its conclusion. We find no "misapplication" of

the law.

Kevin next argues that the trial court erred by permitting Dr. Singer to

testify as an expert in psychology and bonding when Dr. Singer was not

qualified to do so. The record shows that Dr. Singer is a licensed psychologist

with a practice in New Jersey since 1999. He holds a doctorate from Rutgers

University in counseling psychology with a specialization in multicultural

counseling. He testified to his experience in child custody matters and noted

that he deals with cases inside and outside the child protective system. He

testified that approximately eighty percent of his work involved evaluations, and

about twenty percent involved therapy. He further estimated that about half of

his therapy clients are involved with child protective service matters. Finally,

he estimated that he testifies approximately twenty-five times a year in matters

specifically involving the "potential termination of parental rights." Kevin,

objected to qualification of Dr. Singer as an expert, but he offered no meaningful

basis for the objection.

We evaluate a trial court's determination on whether to qualify an expert

using an abuse of discretion standard. We review a court's evidentiary rulings

under an abuse of discretion standard. N.J. Div. of Child Prot. & Permanency

A-3330-20 10 v. N.T., 445 N.J. Super. 478, 492 (App. Div. 2016) (citing State v. Kuropchak,

221 N.J. 368, 385 (2015)). We note that while Kevin's counsel objected to Dr.

Singer's qualifications, they placed no substantive argument on the record to

support their position. In fact, the record supports the trial court's conclusion.

The court had ample support in the record to find Dr. Singer qualified to testify

as an expert, and she properly exercised her discretion in doing so.

Finally, Kevin argues that the court should not have considered the report

of Dr. Winston as expert testimony, as she did not testify at trial and Kevin,

through counsel, did not have the opportunity to confront her through cross-

examination. This argument was not raised below, as Kevin admits in his merits

brief. We are not bound to consider this argument since it was not raised below.

N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 339 (2010). For

completeness, we briefly address the argument on its merits.

We reverse discretionary determinations, as with all rulings on the

admissibility of evidence, only "when the trial judge's ruling was so wide of the

mark that a manifest denial of justice resulted." N.J. Div. of Youth & Fam.

Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012) (internal quotation

marks and citation omitted). Evidentiary rulings not objected to will be reversed

only if deemed plain error. R. 2:10-2. Dr. Winston, a psychologist, was the

A-3330-20 11 only clinician who was able to perform an in-person psychological evaluation

of Kevin. The record shows that Kevin made several admissions to her,

including that: at the time of the interview he was charged with possession of

controlled substances; he sold cocaine in order to "provide shelter" for his

family; and he failed to comply with monthly drug screening or substance abuse

treatment because he felt he did not need treatment. Regardless of these

concerning admissions, Dr. Winston, after conducting her battery of tests and

evaluations, initially recommended a reunification plan for Kevin and Kay in

March 2019. Kevin then failed to follow the reunification plan, even

abandoning his visits with Kay for the rest of 2019.

The Division did not offer Dr. Winston as a witness in this matter. The

trial court admitted her reports into evidence without objection. Given the

extensive record developed at trial, including Tanisha Campbell's testimony,

which corroborated much of what was in Dr. Winston's reports, we conclude the

court's admission of the reports did not lead to an unjust result, and we discern

no plain error.

Kevin raises other arguments in his merits brief which were not submitted

as point headings on appeal. We find they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

A-3330-20 12 Affirmed.

A-3330-20 13