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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4799-14T1 A-4769-15T1 A-5090-15T1
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
C.C.,
Defendant-Appellant. ___________________________________
IN THE MATTER OF J.C., Ti.B., and Ty.B., Minors. ___________________________________
C.C. and A.B.,
Defendants-Appellants. ___________________________________
IN THE MATTER OF THE GUARDIANSHIP OF J.C., Ti.B., and Ty.B., Minors. ___________________________________
Submitted May 9, 2017 – Decided June 29, 2017 Before Judges Ostrer, Leone and Moynihan.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket Nos. FN-09-265-14 and FG-09- 256-15.
Joseph E. Krakora, Public Defender, attorney for appellant C.C. (Kisha M. Hebbon, Designated Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for appellant A.B. (Daniel DiLella, Designated Counsel, on the briefs).
Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jonathan Villa, Deputy Attorney General, on the brief in A-4799-14; Lauren J. Oliverio, Deputy Attorney General, on the brief in A- 4769-15 and A-5090-15).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.C., Ti.B. and Ty.B. (James J. Gross, Designated Counsel, on the briefs).
PER CURIAM
In these three children-in-court cases, we affirm the trial
court's August 25, 2014 decision, finding that defendant-mother
C.C. neglected her three children; and the court's June 29, 2016
termination of C.C.'s parental rights and those of defendant-
father A.B. Since October 2013, the children, J.C., Ti.B. and
2 A-4799-14T1 Ty.B. — born in 2010, 2012 and 2013 — have lived with their
maternal grandmother M.C., who wishes to adopt them.1
In summary, while C.C. was the children's sole caretaker, she
repeatedly left the children alone or with unwilling or unnotified
adults. As a result, the children were removed and placed with
M.C., after A.B. was unable to assume the role of custodial parent.
At the Title 9 fact-finding hearing, the Division of Child
Protection and Permanency presented evidence of three separate
incidents where C.C. left the children home alone. At this
hearing, the Division called M.C.; C.C.'s adult brother, G.C.; and
a Division caseworker. C.C. did not testify or call witnesses.
In the months that followed the fact-finding hearing, the
parents were generally non-compliant with services and failed to
complete psychological evaluations. The parents' visitation was
inconsistent and both parents allowed extended periods of time to
pass without visitation. The Division's plan for the family
eventually changed from reunification to termination.
The Division presented its case for termination through the
testimony of M.C. and the caseworker. A.B. did not appear at the
guardianship trial and his attorney offered no witnesses. C.C.
1 For purposes of this opinion, we consolidate the abuse or neglect appeal with the parents' respective termination-of-parental-rights appeals, which were already consolidated.
3 A-4799-14T1 testified in her own defense, and offered the testimony of her
paramour. Neither the Division nor the parents offered expert
testimony.
The Law Guardian now agrees with the Division that C.C.
neglected the children. The Law Guardian also supports the finding
that the Division met its burden under the best-interests test for
terminating the parents' rights.
I.
In the abuse or neglect appeal, C.C. presents the following
issues:
A. C.C.'s Due Process Rights Were Violated By a Lack Of Sufficient Notice Of DCPP's Intent To Seek a Finding Of Abuse and Neglect Based Upon The Children Being Left At Home Alone Or Unsupervised.
B. The Trial Court Erred In Failing To Exercise Its Discretion To Dismiss The Title Nine Action and Continue The Matter Under Title Thirty.
At the Title 9 hearing, the trial judge found that C.C.
neglected the children by leaving them "home unsupervised on
[three] occasions [and] thereby failed to exercise a minimum degree
of care putting the children at a substantial risk of harm." The
court also found C.C. at other times left the children with
unwilling or unknowing caretakers in the home, which included her
mother, M.C.; her adult brother, G.C.; and homemakers placed by
4 A-4799-14T1 the Division in the home after C.C. had previously left the
children. Also in the home were C.C.'s younger siblings, who were
then eighteen and thirteen years old. However, the judge found
these incidents, although inexcusable, did not constitute neglect
because the adults' and teenagers' presence countered the risk of
harm.
In support of its "home alone" findings, the court credited
the testimony of G.C., who reported finding the three children by
themselves in the house after he returned from work; and the
testimony of M.C., who experienced a similar incident, and also
once found two of the children in the bathtub alone, while C.C.
was standing outside the house on the sidewalk.
C.C. contends that because the Division's complaint did not
specify the three "home alone" incidents in its verified complaint
for custody, it violated her due process right to fair notice. We
disagree.
A defendant's due process rights include a right to "notice
defining the issues and an adequate opportunity to prepare and
respond." J.D. v. M.D.F., 207 N.J. 458, 478 (2011) (internal
quotation marks and citation omitted). "There can be no adequate
preparation [for trial] where the notice does not reasonably
apprise the party of the charges, or where the issues litigated
at the hearing differ substantially from those outlined in the
5 A-4799-14T1 notice." N.J. Div. of Youth and Family Servs. v. B.M., 413 N.J.
Super. 118, 127 (App. Div. 2010) (internal quotation marks and
citation omitted); see also N.J. Div. of Youth & Family Servs. v.
P.C., 439 N.J. Super. 404, 413 (App. Div. 2015) (stating an abuse
or neglect complaint must adequately notify the defendant of all
charges).
In B.M., supra, we reversed a judgment terminating parental
rights where the Division introduced at trial, without prior
notice, an expert report asserting the child was born with fetal
alcohol syndrome. 413 N.J. Super. at 127. Prior thereto, the
Division had focused on the newborn's positive test for cocaine,
the mother's history of drug abuse, and her inability to care for
her other children. Id. at 123. Several factors led to our
conclusion of harmful error. We noted the evidence came as a
surprise. Id. at 127. The court's repeated use of the report
before it was offered in evidence indicated an objection would
have been futile. Id. at 128. The defendant had no opportunity
to challenge the expert's report with an expert of her own. Id.
at 127. And the report played a significant role in the court's
findings and the trial outcome, because the evidence of cocaine
in the newborn's system, without more, fell short of proving harm
to child, while proof of fetal alcohol syndrome did establish
harm. Id. at 128.
6 A-4799-14T1 In J.D., supra, a case under the Prevention of Domestic
Violence Act, N.J.S.A. 2C:25-17 to -35, the Court reversed a final
restraining order based on a due process violation, where the
plaintiff presented evidence of prior acts of domestic violence
that she did not include in her complaint. 207 N.J. at 478-82.
Notably, the defendant inartfully objected and sought a
continuance, stating he was unprepared to meet the new allegations.
Id. at 468-69. However, no continuance was granted. Id. at 469.
The Court recognized that evidence at trial may often go
beyond that set forth in the complaint. Id. at 479. "That reality
is not inconsistent with affording defendants the protections of
due process to which they are entitled." Ibid. A court must
recognize that if it allows expansion of the allegations in the
complaint, "it has permitted an amendment to the complaint and
must proceed accordingly." Id. at 479-80. The court must also
consider whether the expansion prejudices the defendant, and
whether an adjournment or other remedy is warranted.
To be sure, some defendants will know full well the history that plaintiff recites and some parties will be well-prepared regardless of whether the testimony technically expands upon the allegations of the complaint. Others, however, will not, and in all cases the trial court must ensure that defendant is afforded an adequate opportunity to be apprised of those allegations and to prepare.
[Id. at 480.]
7 A-4799-14T1 Although neither B.M. nor J.D. addressed Rule 4:9-2, those
decisions are consonant with the principles set forth in the rule,
which permits the amendment of complaints to conform to the
evidence. First, the failure to object tends to support permitting
a party to introduce new issues or claims. "When issues not raised
by the pleadings and pretrial order are tried by consent or without
the objection of the parties, they shall be treated in all respects
as if they had been raised in the pleadings and pretrial order."
R. 4:9-2 (emphasis added). Second, a formal amendment is not
necessary. "Such amendment of the pleadings and pretrial order
as may be necessary to cause them to conform to the evidence and
to raise these issues may be made upon motion of any party . . . ;
but failure so to amend shall not affect the result of the trial
of these issues." Ibid. (emphasis added).
Finally, if there is an objection, then the court should
freely allow amendment if the objecting party would not be
prejudiced, and should grant a continuance if that would be
sufficient to enable the objecting party time to prepare.
If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings and pretrial order, the court may allow the pleadings and pretrial order to be amended and shall do so freely when the presentation of the merits of the action will be thereby subserved and the objecting party fails to satisfy the court that the admission of such evidence would be prejudicial in
8 A-4799-14T1 maintaining the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
[Ibid.]
See Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437,
457 (1998) (stating power of amendment should be liberally
exercised absent undue prejudice).
Applying these principles, we discern no basis to disturb the
court's finding of neglect on due process grounds. The verified
complaint did not include the three "home alone" incidents among
the many specifically identified in the complaint and described
in Division documents. However, C.C. was generally apprised of
potential proofs that the children were left alone. In compliance
with the court's pre-trial order, the Division advised the court
and defendant that it sought a finding that C.C. "repeatedly failed
to arrange appropriate supervision for her children with a willing
caretaker" and a separate finding that "if an appropriate caretaker
was available, [C.C.] failed to notify that individual that they
were being left in a caretaking role . . . ." The first requested
finding encompassed leaving the children home alone when no
appropriate caretaker was available.
Furthermore, C.C.'s counsel did not object to G.C.'s or M.C.'s
testimony about the "home alone" incidents. C.C. claims she did
9 A-4799-14T1 object, mistakenly relying on her trial counsel's objection to a
line of questioning involving an incident when one of the children
apparently fell out of bed and M.C. had to assist in C.C.'s
absence. First, the questioning did not involve one of the "home
alone" incidents. Second, defense counsel objected on relevance,
not due process, grounds. The Division defended the line of the
questioning, contending it demonstrated that an unwilling adult's
presence did not obviate all risk of harm.
Unlike in J.D., C.C. did not seek an adjournment, nor did she
assert that she was unprepared to respond to the allegations.
Although C.C. did not testify or call witnesses, her counsel
vigorously cross-examined the two witnesses, noting that neither
had previously conveyed these allegations to the Division. Also,
unlike the defendant in B.M., C.C. did not need help from an expert
to meet unanticipated testimony. In sum, absent proper objection
and a showing of undue prejudice, we reject C.C.'s contention that
the neglect finding should be set aside on due process grounds.
C.C.'s remaining argument that there was insufficient
evidence to support the neglect finding lacks sufficient merit to
warrant extended discussion. R. 2:11-3(e)(1)(E). We defer to the
trial judge's fact findings that are rooted in the judge's
familiarity with the case, opportunity to make credibility
judgments based on live testimony, and expertise in family matters.
10 A-4799-14T1 Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We will affirm a
Family Part's decision when substantial credible evidence in the
record supports the court's findings. N.J. Div. of Youth and
Family Servs. v. E.P., 196 N.J. 88, 104 (2008). When reviewing
abuse and neglect cases, we consider the totality of the
circumstances. N.J. Div. of Youth and Family Servs. v. P.W.R.,
205 N.J. 17, 39 (2011). However, we are not bound by the trial
court's legal conclusions. N.J. Div. of Youth & Family Servs. v.
I.S., 202 N.J. 145, 183 (2010).
Given that deferential standard of review, we conclude there
was ample support for the trial judge's finding that C.C. failed
to exercise "a minimum degree of care . . . in providing [her
children] with proper supervision," and thereby created a
"substantial risk" of harm. See N.J.S.A. 9:6-8.21(c)(4)(b). C.C.
left her three children, all under five and the youngest under a
year old, home alone and, in one case, two of them alone in the
bathtub. That C.C. may have done so briefly, or had been close
by, but outside the residence, did not mitigate the risk.
C.C.'s actions are far more egregious than those of the parent
in Department of Children and Families v. T.B., 207 N.J. 294
(2011), upon which she misplaces reliance. In a single isolated
incident, the mother in T.B. presumed — negligently — that the
child's grandparents were in the home, based on the presence of
11 A-4799-14T1 their car in the driveway and their typical schedule. Id. at 309.
By contrast, there is no evidence that C.C. presumed the presence
of adults. Furthermore, unlike in T.B., C.C.'s actions were not
"totally out of the ordinary." Id. at 310. She left the children
home alone on three occasions, she repeatedly left the children
home with unwilling or unnotified adults, and she continued to
violate the Division's safety protection plan.
Under the totality of these circumstances, the trial court
was justified in finding that C.C.'s conduct was "willful and
wanton" so as to support a finding of neglect. See G.S. v. Dep't
of Human Servs., 157 N.J. 161, 178 (1999); N.J. Div. of Youth and
Family Servs. v. A.R., 419 N.J. Super. 538, 543 (App. Div. 2011).
II.
We turn next to the guardianship appeal. "A parent's right
to enjoy a relationship with his or her child is constitutionally
protected." In re Guardianship of K.H.O., 161 N.J. 337, 346
(1999). In order to overcome this fundamental right, the Division
must satisfy the four-factor best interests test, as set forth
under Title 30, by clear and convincing evidence:
(1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and
12 A-4799-14T1 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.
[N.J.S.A. 30:4C-15.1(a).]
See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591,
604-11 (1986) (setting forth the standards of proof for termination
of parental rights cases). The four factors are interrelated.
K.H.O., supra, 161 N.J. at 348. Factors one and two in particular
overlap. In re Guardianship of DMH, 161 N.J. 365, 378-79 (1999).
In their appeal from the June 2016 judgment terminating their
parental rights, C.C. and A.B. challenge the trial court's findings
regarding each of the four elements of the best interests test.
N.J.S.A. 30:4C-15.1(a)(1)-(4). Applying our deferential standard
of review, we reject these arguments and affirm substantially for
the reasons set forth in Judge Bernadette DeCastro's written
opinion. We limit ourselves to the following additional comments.
13 A-4799-14T1 In challenging the court's findings under factors one and
two, both defendants contend the Division failed to prove actual
or significant risk of harm. C.C. contends the court erred in
depreciating her trial testimony that she had obtained stable
housing and employment. A.B. argues the court gave undue weight
to his use of marijuana, housing instability, and poverty. We
"Serious and lasting emotional [and] psychological harm to
children as [a] result of the action or inaction of their
biological parents can constitute injury sufficient to authorize
the termination of parental rights." In re Guardianship of K.L.F.,
129 N.J. 32, 44 (1992). "A parent's withdrawal of that solicitude,
nurture, and care for an extended period is in itself a harm that
endangers the health and development of the child." DMH, supra,
161 N.J. at 379. In particular, "[t]he lack of a permanent, safe,
and stable home" may warrant termination of parental rights. Id.
at 383. The absence of physical abuse or neglect is not
conclusive; the court must also consider the potential for serious
psychological damage. A.W., supra, 103 N.J. at 605; N.J. Div. of
Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div.
2001), certif. denied, 171 N.J. 44 (2002); In re Guardianship of
R.G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977).
14 A-4799-14T1 Prong two focuses on parental unfitness. K.H.O., supra, 161
N.J. at 352. This factor "is aimed at determining whether the
parent has cured and overcome the initial harm that endangered the
health, safety, or welfare of the child, and is able to continue
a parental relationship without recurrent harm to the child." Id.
at 348. "[T]he second prong may be met by indications of parental
dereliction and irresponsibility, such as the parent's continued
or recurrent drug abuse, the inability to provide a stable and
protective home, [and] the withholding of parental attention and
care . . . ." Id. at 353.
Here, the record contains ample evidence supporting the trial
court's determination that the children will continue to be
endangered by the parental relationship, and that neither parent
is able to eliminate that danger and provide a safe and stable
home. For almost three years, the children remained in their
grandmother's care and custody, while neither C.C. nor A.B.
provided even "minimal parenting" to their children. See DMH,
supra, 161 N.J. at 379. A.B. declined to present himself as a
custodial parent when the children were first removed from C.C.'s
care in October 2013. Both parents allowed extended periods of
time to pass without seeing their children at all. M.C. testified
about the emotional impact that defendants' inconsistent visits
have had on the children. For instance, one child became upset
15 A-4799-14T1 when C.C. left his birthday party, allegedly to get a gift from
her car, and never returned; and when A.B. failed to appear as
promised for a child's school field trip. Both C.C. and A.B.
failed to complete psychological evaluations or substance abuse
evaluations, despite numerous appointments. C.C. completed a
parenting skills program, but she did so more than a year-and-a-
half after it was ordered.
We defer to Judge DeCastro's credibility determination, which
gave little weight to C.C.'s assertion that she achieved stability.
Notably, neither C.C. nor A.B. provided documentary proof of
employment, despite multiple court orders requiring it. We also
reject A.B.'s argument that the court placed undue weight on his
drug use and financial circumstances. The court's focus was on
A.B.'s inability to provide a safe and stable home.
As for prong three, the record clearly supports the court's
determination that the Division made diligent efforts to provide
services for the parents. The court must assess the adequacy of
the Division's efforts "in light of all the circumstances of a
given case." DMH, supra, 161 N.J. at 393. The Division is only
required to provide reasonable services; a parent's failure to
become fit to care for his or her children "is not determinative
of the sufficiency of [the Division's] efforts . . . ." Ibid.
16 A-4799-14T1 The Division provided numerous services for the parents, but
defendants were largely non-compliant. In addition to the
parenting skills training that C.C. eventually completed, the
Division offered homemaker services to A.B., which he refused, and
to C.C., which she misused; substance abuse evaluations, which the
parties failed to complete or follow; and psychological and bonding
evaluations, which the parties failed to attend or complete. The
Division also provided each with monthly bus passes and case-aides
to personally drive them to scheduled appointments, and assisted
them in visiting their children.
We discern no merit in C.C.'s argument that the Division was
obliged to increase visits or grant unsupervised visits, once she
secured stable housing. Before the children's removal in October
2013, C.C. repeatedly left them alone, or with unwilling or
unnotified adults. She failed to complete psychological and
substance abuse evaluations to demonstrate she was ready and fit
for unsupervised visits. She also failed to present documentary
proof of employment or her living situation. Under these
circumstances, the Division was not obliged to offer C.C.
unsupervised, overnight parenting time as part of its reasonable
efforts.
We are also unpersuaded by A.B.'s argument that the Division
failed to consider his sisters as alternative caregivers to M.C.
17 A-4799-14T1 The Division is obliged to search for, and assess "relatives who
may be willing and able to provide the care and support required
by the child." N.J.S.A. 30:4C-12.1(a). However, "there is no
presumption favoring the placement of a child with such relatives."
N.J. Div. of Youth and Family Servs. v. J.S., 433 N.J. Super. 69,
82 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014).
Moreover, there is no evidence to suggest that either sister was
willing and able to care for the children.
Lastly, both parents challenge the court's prong four finding
that termination of parental rights would not cause more harm than
good. Both highlight the fact that the Division did not offer an
expert opinion that compared their bonds with the children against
M.C.'s. Generally, "the [Division] should offer testimony of a
'well qualified expert who has had full opportunity to make a
comprehensive, objective, and informed evaluation' of the child's
relationship with both the natural parents and the foster parents."
N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 281
(2007) (citation omitted). However, defendants should not be
heard to complain about the absence of expert testimony, as they
obstructed the presentation of such evidence by their repeated
failure to submit to psychological evaluations. Cf. N.J. Div. of
Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div.
18 A-4799-14T1 2009) (stating "we can envision very few scenarios in which
comparative evaluations would not be required").
Some background here is necessary. C.C. appeared for an
initial session as part of a psychological evaluation by the
Division's expert, Robert J. Miller, II, Ph.D., but failed to
return for its completion or for a bonding evaluation. A.B. may
have appeared for a bonding evaluation, but not for a psychological
evaluation.2 M.C. appeared for the bonding evaluation. Dr. Miller
explained in his report that he could not offer opinions regarding
the parents' psychological or parental functioning due to their
lack of cooperation.
At a pretrial hearing, the Division offered the report for
the sole purpose of demonstrating at trial the parents' lack of
cooperation. C.C.'s counsel objected to the admission of Dr.
Miller's opinions. A.B.'s counsel joined in a general objection
to any embedded hearsay in Division documents, which included Dr.
Miller's opinions. See N.J.R.E. 808. However, on the first day
2 We note a discrepancy in the documentary record. According to a January 13, 2016 contact sheet, a caseworker transported the three children and A.B. to Dr. Miller's office for an evaluation on January 7, 2016. However, Dr. Miller's April 9, 2016 "Forensic Psychological and Bonding Evaluation" report listed A.B. as a "no show" for January 7, 2016.
19 A-4799-14T1 of trial, the deputy attorney general stated she did not intend
to offer Dr. Miller's report into evidence after all.3
Notwithstanding this background, A.B. relies on Dr. Miller's
recorded impressions of the bonding evaluation with M.C. to support
his challenge of the Division's prong four showing. We reject the
argument because Dr. Miller's impressions were not in evidence.
Indeed, one way or another, both defense counsel objected to the
admission of Dr. Miller's opinions.
In the absence of expert testimony, Judge DeCastro credited
the testimony of the Division's caseworker that the children were
well-adjusted, well-cared for, and happy in their grandmother's
home. The court gave little weight to the testimony of C.C.'s
paramour that the children became upset when their visits with
their mother ended, and that they wanted to go home with her. The
court found more credible that the parents had "over and over
again disappointed their children by missing visits, leaving
visits without explanation, and not showing up when their children
needed them the most."
3 C.C.'s attorney then responded that the report was admissible as a consultant's report under Rule 5:12-4(d), apparently for the purpose of introducing the hearsay statements C.C. made to the evaluator, but "not the diagnostics." The court reserved decision. Notably, in its list of items admitted into evidence accompanying her order, the court included the report, but there is no indication that it was ever offered for the purpose of introducing Dr. Miller's opinions or "diagnostics."
20 A-4799-14T1 In any event, the court need not, and Judge DeCastro did not,
find that there was no bond or emotional connection between the
children and their parents. Prong four does not require "a showing
that no harm will befall the child as a result of the severing of
biological ties." K.H.O., supra, 161 N.J. at 355. The court's
prong four determination involved the choice between two options:
(1) terminating parental rights followed by adoption by the
grandmother who had served as a capable, loving caregiver in a
stable home; or (2) continuing the uncertainty and lack of
permanency in the children's lives, without any demonstrated
likelihood that C.C. or A.B. would become fit to parent in the
foreseeable future. We discern no error in the court's conclusion
that termination would not do more harm than good.
Affirmed.
21 A-4799-14T1