DCPP VS. D v. A.B.-L., AND G.O., IN THE MATTER OF THE GUARDIANSHIP OF J v. J.L. v. K.L. v. AND B.L. v. (FN-07-0344-16 AND FG-07-0181-17, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 6, 2019
• Docket: A-3769-16T1/A-3770-16T1/A-2432-17T1/A-2434-17T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 NOS. A-3769-16T1 A-3770-16T1 A-2432-17T1 A-2434-17T1

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

D.V. and A.B.-L.,

Defendants-Appellants,

and

G.O.,

Defendant.

IN THE MATTER OF THE GUARDIANSHIP OF J.V., J.L.-V., K.L.-V. and B.L.-V.,

Minors. Submitted September 24, 2019 – Decided November 6, 2019

Before Judges Fisher, Accurso and Rose.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FN-07-0344-16 and FG-07-0181-17.

Joseph E. Krakora, Public Defender, attorney for appellant D.V. (Robyn A. Veasey, Deputy Public Defender, of counsel; Jennifer M. Kurtz, Designated Counsel, on the briefs).

Joseph E. Krakora, Public Defender, attorney for appellant A.B.-L. (Ifeoma Antonia Odunlami, Designated Counsel, on the briefs in A-3770-16; Mark Edward Kleiman, Designated Counsel, on the briefs in A-2434-17).

Gurbir S. Grewal, Attorney General, attorney for respondent (Jason Wade Rockwell, Assistant Attorney General, of counsel; Roman Guzik, Deputy Attorney General, on the briefs in A-3769-16 and A-3770-16; Casey Jonathan Woodruff, Deputy Attorney General, on the briefs in A-2432-17 and A-2434-17).

Joseph E. Krakora, Public Defender, attorney for minors (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Todd S. Wilson, Designated Counsel, on the briefs).

PER CURIAM

D.V. (Donna) and A.B.-L. (Albert) appeal from a finding that they

abused and neglected then three-year-old J.V. (Jaden), two-year-old J.L.-V.

(Jamie), and two-month-old K.L.-V. (Katie) and from the subsequent

A-3769-16T1 2 termination of their parental rights to those children, as well as to B.L. -V.

(Becky) born after commencement of the guardianship action. 1 Having

consolidated the appeals for purposes of this opinion, we now affirm both

judgments, essentially for the reasons expressed by Judge Paganelli in his

thorough and well-reasoned opinions of November 30, 2016 and January 12,

2018.

The facts are fully set forth in Judge Paganelli's opinions and do not

require repeating here. We note only the essentials, that is that the family first

came to the attention of the Division in 2015, when Albert left Jaden and

Jamie alone when he went to the liquor store, and kicked Donna in the stomach

and back when they argued about it afterwards. She was then pregnant with

Katie. Albert denied striking Donna or being drunk when alleged to have done

it and refused to cooperate with the investigation. The Division closed its case

after Donna assured the investigator she was no longer living with Albert and

signed a family agreement promising she would not let him act as a caretaker

for the children in the future.

1 We employ fictitious names to protect the children's privacy. Although Donna and Albert are the parents of the three youngest children, Jaden, the eldest, is not Albert's son. Jaden's biological father did not participate in the litigation in the trial court and is not a party to the appeal. A-3769-16T1 3 By early 2016, however, the couple was back together, and Donna was

working nights. When Donna left Albert to watch the children one night while

she worked, he broke eight of Katie's ribs, her femur and inflicted a serious

brain injury that left her hospitalized for a month and in a residential care

facility for the next twenty months.

At the fact-finding hearing in the subsequent abuse and neglect

proceeding, the Division admitted defendants' statements to the police about

Katie's injuries. Although both Donna and Albert initially denied that Albert

was alone with the children when Katie was hurt, they eventually admitted he

was watching all three children at the time. After suggesting several other

explanations for Katie's condition, Albert finally told police that Katie had

been restless, and Jaden and Jamie were jumping around and screaming as he

tried to soothe the baby by rocking her. When Katie wouldn't stop crying, and

the older children wouldn't settle down, he became upset and desperate and

started rocking Katie harder and squeezing her tighter. As the situation wore

on, he grew tense and started shaking Katie until she finally stopped crying a

few minutes later.

Donna told police that when she got home, after 3:30 a.m., Jaden, who

was "non-verbal," said "dad," gesturing to Albert, and made a shaking motion

A-3769-16T1 4 with his hands. The next morning, Katie's eyes were rolled back in her head

and she was clenching and unclenching her fists. Donna suggested taking her

to the hospital but Albert resisted. Although both Donna and Albert had

previously witnessed Jaden having a seizure, they delayed taking Katie to the

hospital for well over a day. When they finally took Katie to the emergency

room, her eyes were turning in circles and the doctors could not control her

seizures.

Judge Paganelli accepted the testimony of the Division's expert, the

medical director of the Metro Regional Diagnostic and Treatment Center, Dr.

Weiner, board certified in pediatrics and child abuse pediatrics, who examined

Katie and consulted with her treating doctors. She opined the child's injuries

likely resulted from a single episode of forceful shaking, either from the

shaking itself or, in the case of the rib fractures, from squeezing, and that

defendants medically neglected Katie by failing to take her to the hospital

sooner.

The judge rejected the opinion of defendants' pediatric neurologist that

the rocking and shaking Albert described would not have caused the extent of

Katie's brain injury, and was thus likely merely coincidental to meningitis,

encephalitis, or cortical venous thrombosis. Judge Paganelli noted none of

A-3769-16T1 5 Katie's doctors had diagnosed her with any of those conditions, and they were

not apparent in the child's lab work. Defendant's neurologist had also not

examined Katie, nor consulted with her treating doctors and did not believe

abusive head trauma was a legitimate diagnosis, despite its recognition by the

American Academy of Pediatrics.

Defendants' pediatric radiologist agreed with the Division's expert that

the injuries to Katie's chest and ribs were likely caused by compression of her

rib cage, but he concluded the injuries were more likely caused by "rough

handling" rather than forcible shaking. Although Judge Paganelli found the

radiologist's testimony as to the nature of Katie's injuries generally credible, he

rejected his conclusion that they resulted from rough handling as inconsistent

with Albert's description of events.

Having given the parties advance notice in accordance with New Jersey

Division of Youth and Family Services v. R.D., 207 N.J. 88, 120 (2011), that

he would make his findings pursuant to the higher Title Thirty "clear and

convincing" standard if supported by the proofs, Judge Paganelli found the

Division proved by clear and convincing evidence that defendants had abused

and neglected all three children.

A-3769-16T1 6 Specifically, the judge found inadequate supervision by both Donna and

Albert based on admissions in their statements to the police that they

occasionally left all three children alone in order to take out the trash or buy

food when the two toddlers were asleep or watching television. The judge

noted the children were described by witnesses "as aggressive, fighting badly,

screaming, throwing things, fighting over the television, playing hard, jumping

on furniture," and often "needed to be separated." Although noting such

"behavior may be somewhat expected for children of this age group," the judge

found that fact, and that the children couldn't yet talk, "offers the very reason

why the children cannot be left unsupervised by their parents." The judge also

found Donna improperly supervised the children by leaving them alone with

Albert after acknowledging he was not an appropriate supervisor for the

children in the family agreement she entered into with the Division.

Judge Paganelli found Albert physically abused Katie by deliberately

causing her "extensive brain and retinal injuries" as well as bone fractures

based on Albert's admissions of squeezing and shaking Katie, the objective

proof of those injuries and Dr. Weiner's testimony that Albert's actions caused

Katie's injuries. The judge also found Albert exposed Jaden and Jamie to a

substantial risk of harm by physically abusing Katie while caring for the older

A-3769-16T1 7 children as witnessed by Jaden. The judge found both Donna and Albert

medically neglected Katie by their delay in getting her to the hospital after

seeing her eyes turned up and the abnormal clenching of her hands.

Judge Paganelli applied those clear and convincing findings, with the

exception of the "statement" attributed to Jaden of Albert shaking Katie, see

N.J. Div. of Child Prot. & Permanency v. T.U.B., 450 N.J. Super. 210, 213-14

(App. Div. 2017), to find the Division proved the first prong of the best

interests standard in the subsequent guardianship trial, that the children's

health and development has been endangered by the parental relationship. See

N.J.S.A. 30:4C-15.1(a)(1).

He found the Division proved the second prong as to Donna, that the

parent was unable or unwilling to eliminate the harm, N.J.S.A. 30:4C-

15.1(a)(2), based on the testimony of the Division's neuropsychologist, Dr.

Mack, that "there is an organic etiology to [Donna's] poor judgment" and

maladaptive behavioral patterns, including her inability to separate from Albert

because she claimed she "had no one else to help her," and still did "not know

if he ha[d] done anything wrong" with regard to Katie, despite overwhelming

proof of the injuries he caused the two-month-old. The judge also accepted

Dr. Mack's view that the prognosis for Donna becoming an independent

A-3769-16T1 8 minimally effective parent "is extremely poor based on her neuropsychological

and psychological makeup."

The judge found Albert was unwilling or unable to eliminate the harm he

posed to the children because he denied any responsibility for Katie's injuries

in his interview with the Division's psychologist, Dr. Dyer. Dr. Dyer reported

Albert claimed Katie's bones were not actually broken and that her injuries

may have been caused by a blood disorder or by restlessly moving around

excessively.

Judge Paganelli found the Division easily proved it had made reasonable

efforts to help Donna and Albert correct the circumstances leading to the

children's removal under the third prong, N.J.S.A. 30:4C-15.1(a)(3), although

Dr. Mack opined there were no services that could make either a minimally

effective parent in the foreseeable future, and found no alternatives to

termination of their parental rights.

As to the fourth prong, that termination not do more harm than good,

N.J.S.A. 30:4C-15.1(a)(4), the judge relied on the bonding evaluations

conducted by Dr. Dyer. Dr. Dyer found no bond between either Donna or

Albert and Katie and Becky as both had been removed from the care of their

parents at an extremely early age. Becky, only ten months old at the time of

A-3769-16T1 9 the evaluation, had never lived with them, and Katie was not yet three months

old when Albert injured her. Both children were in the care of families

wanting to adopt them, in Katie's case, a nurse who had cared for her during

her twenty months in a residential care facility.

Dr. Dyer concluded Katie's "emotional needs would be more adequately

addressed by a permanent caretaker other than her birth mother." As for

Becky, Dr. Dyer believed reunifying her with Donna before her first birthday

when an attachment to her resource parent would begin to develop would be

the best option, but only if Donna could separate from Albert and manage to

become a minimally fit parent within that timeframe.

The situation with Jaden and Jamie, who had been placed together, was

more complicated. Both children had an attachment to Donna, and Jamie was

also attached to Albert. Dr. Dyer found Jamie also had an attachment to her

resource parent. He opined that terminating Jamie's relationship with either

Donna or the resource father would likely cause her "a similarly distressing

loss," less with Albert, which the resource father would be able to mitigate, but

Donna, because of her psychological problems, would not.

Dr. Dyer found Jaden had also formed a "very close emotional tie" to his

resource father, who provided the child with "appropriate structure,

A-3769-16T1 10 nurturance, positive role modeling, physical safety, and emotional security,"

but that Donna remained Jaden's "central parental love object." Although Dr.

Dyer acknowledged that reunifying Jaden with Donna would confer some

therapeutic benefit, he noted Jaden did not receive adequate stimulation and

structure when he lived with defendants. He accordingly concluded that

reunification would likely cause Jaden to "suffer a regression in learning and

behavior due to [Donna's] persisting problems," adding that a failed

reunification would be an "absolute disaster" for the child. Termination of

Jaden's relationship with Donna, on the other hand, would likely have a

"disorganizing and distressing effect on [him] that runs the risk of inflicting

long-term or serious psychological harm," which Dr. Dyer believed Jaden's

resource father would be able to mitigate, but not eliminate completely.

Donna and Albert did not present an expert to counter those testifying on

behalf of the Division and did not offer any other witnesses. Neither testified.

Based on the bonding evaluations, Judge Paganelli found "clearly and

convincingly" that termination of Donna's and Albert's parental rights as to all

four children "will not do more harm than good." The judge noted that Dr.

Dyer's opinion that reunification with Donna should be considered for Becky

and Jaden was "tethered to [Donna] being able to extract herself from [Albert]

A-3769-16T1 11 and, more importantly, address her problems," neither of which the court

concluded was remotely likely. Concluding based on the expert testimony that

neither Donna nor Albert would ever likely become minimally fit parents, the

judge found "neither parent can offer the children the safe and stable

placement they deserve."

Defendants appeal, arguing the court erred in concluding they abused or

neglected Jaden, Jamie and Katie and that the Division failed to prove all four

prongs of the best interests standard by clear and convincing evidence. The

Law Guardian joins the Division in urging that we affirm both judgments.

We find defendants' various arguments, all of which are premised

entirely on alleged errors in the judge's fact finding, utterly without merit. 2

2 Although both defendants assert their statements to police were coerced and, to that extent, unreliable, Donna adds that the neuropsychological condition diagnosed by the Division's expert in the guardianship matter was particularly relevant to a determination of the reliability of her statement. She further contends she could not have litigated the issue in the abuse and neglect matter because the evidence was not yet available, and was precluded from doing so in the guardianship case based on collateral estoppel. We do not address this argument, which she raises for the first time on appeal despite an adequate opportunity to investigate and raise the issue in the trial court, see Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973), and only explicitly in her reply brief, thereby compounding the problem, see L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc., 434 N.J. Super. 60, 87 (App. Div. 2014) ("An appellant may not raise new contentions for the first time in a reply brief."). We note only that the evidence in the record on Donna's neuropsychological

A-3769-16T1 12 The trial 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 &

Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted). We are not

free to overturn the factual findings and legal conclusions of a trial judge

"unless we are convinced that they are so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as

to offend the interests of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of

Am., 65 N.J. 474, 484 (1974) (citation omitted).

Because the trial judge's findings that Donna and Albert abused and

neglected Jaden, Jamie and Katie, and that the Division proved all four prongs

of the best interests standard as to all three children and Becky by clear and

convincing evidence have that support in the record, we affirm the judgments

in both matters substantially for the reasons expressed by Judge Paganelli in

his thorough and thoughtful opinions accompanying each.

Affirmed.

condition is limited to its effect on her ability to parent. There is nothing in the record as to its implications, if any, for the reliability of her statements to police. A-3769-16T1 13