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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4736-15T2 A-4739-15T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
H.H. and C.R.,
Defendants-Appellants. ___________________________
IN THE MATTER OF THE GUARDIANSHIP OF K.H., J.H., and D.H.,
Minors. ____________________________
Submitted May 4, 2020 – Decided July 13, 2020
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-0094-15. Joseph E. Krakora, Public Defender, attorney for appellant H.H. (Robyn A. Veasey, Deputy Public Defender, of counsel; Laura Orriols, Designated Counsel on the briefs).
Joseph E. Krakora, Public Defender, attorney for appellant C.R. (Robyn A. Veasey, Deputy Public Defender, of counsel; Christine Olexa Saginor, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa Dutton Schaffer and Donna Sue Arons, Assistant Attorney Generals, of counsel; Joshua Paul Bohn, Deputy Attorney General, on the briefs).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.H. and J.H. (Meredith Alexis Pollack, Assistant Deputy Public Defender, of counsel; James Joseph Gross, Designated Counsel, on the briefs).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.H. (Meredith Alexis Pollack, Assistant Deputy Public Defender, of counsel; Todd S. Wilson, Designated Counsel, on the briefs).
PER CURIAM
Following trial, the Family Part entered its May 5, 2016 judgment of
guardianship terminating the parental rights of defendants, H.H. (Harry) and
C.R. (Carmela), to their three children, D.H. (Debbie), born January 2003, J.H.
A-4736-15T2 2 (Jack), born August 2005, and K.H. (Kathy), born July 2007. 1 Defendants
moved for reconsideration, which the judge denied.
Defendants appealed, arguing the Division of Child Protection and
Permanency (the Division) failed to produce clear and convincing evidence
satisfying all four prongs of the statutory best-interests-of-the-child test,
N.J.S.A. 30:4C-15.1(a)(1)-(4). In addition, Harry contended the judge
mistakenly admitted, over his objection, certain Division evaluation reports,
because she concluded the Division's expert psychologist, Dr. Barry Katz, relied
upon them in rendering his opinions at trial. Harry asserted the judge's mistaken
conclusion about the bases for the expert's opinions rendered Dr. Katz's opinions
unworthy of belief. The children's Law Guardian specifically joined in
challenging the sufficiency of the prong three and four evidence and urged us to
reverse the judgment.
While the appeal was pending, the resource parent, who at the time of trial
had indicated a willingness to adopt all three children, changed her mind as to
Debbie and Jack, both of whom had displayed serious behavioral problems in
the interim. Defendants moved before us to summarily reverse the judgment of
1 We use pseudonyms and initials throughout the opinion pursuant to Rule 1:38- 3(d)(12). A-4736-15T2 3 guardianship, or, in the alternative, for a limited remand to the Family Part to
consider a motion to vacate the judgment pursuant to Rule 4:50-1 based upon
this change in circumstances. We granted the alternate relief and stayed
appellate proceedings pending defendants filing motions in the Family Part to
vacate the judgment, which they did.
A different judge heard oral argument on the motions. In a comprehensive
oral opinion outlining the parties' arguments and the developments since entry
of the judgment, the judge noted that Debbie and Jack now had "no reasonable
prospects of being adopted into the same home." She decided to reopen the
guardianship docket based on "newly discovered evidence[,]" and, in granting
what she characterized as "relatively narrow" relief, the judge allowed Dr. Katz
"the opportunity to review the newly discovered information and determine if
this change in circumstances would affect his opinion as it was presented to the
[t]rial [c]ourt." The judge denied defendants' other requests for new bonding
evaluations and to vacate the judgment and grant them visitation.
Dr. Katz's initial supplemental report indicated a need to conduct further
evaluations, and the judge subsequently entered orders permitting them. She
continued to deny, however, defendants' requests for new bonding evaluations.
A-4736-15T2 4 The judge granted the Law Guardian's motion to hold a plenary hearing, which
was conducted over four non-consecutive days between April and July 2018. 2
On September 21, 2018, the judge entered an order granting defendants'
motion to vacate the judgment of guardianship as to Debbie and Jack, but she
denied the motion as to Kathy. Defendants filed amended notices of appeal
seeking review of this order. The Division did not file a cross-appeal. As a
result, we only consider the arguments raised by defendants as to the termination
of their parental rights to Kathy.
In addition to the points on appeal he originally raised, Henry now
contends the remand judge erred by limiting the development of a full record
regarding potential reunification with Kathy, while at the same time concluding
that reunification with Debbie and Jack was possible. He also argues that this
limitation on the scope of the remand hearing, along with the Division's bad
faith during trial, denied him due process. Carmela reasserts her arguments
regarding the insufficiency of the evidence supporting termination. She also
contends that the remand judge misapplied the Court's holding in In re
Guardianship of J.N.H., 172 N.J. 440 (2002), regarding a Rule 4:50-1 motion to
2 Recognizing a potential conflict between Kathy's interests and those of her siblings, the judge wisely appointed a different Law Guardian to represent Kathy. A-4736-15T2 5 vacate, and the judge erroneously focused her attention on whether the initial
judgment was correct, rather than whether it remained fair and equitable under
the changed circumstances.
The Division asserts that the trial evidence satisfied its burden of proof as
to all four prongs of the statutory test, and that the additional evidence on remand
continued to support the judgment of guardianship. Kathy's Law Guardian's
supplemental brief urges us to affirm the judgment.
We have considered these arguments and affirm.
I.
Caseworkers assigned to the family testified at trial about the long history
of the Division's involvement with defendants, who were never married, and, at
the time of trial, were married to other people. The caseworkers detailed much
of the documentary evidence, which included past substantiated and
unsubstantiated referrals for domestic violence and substance and alcohol abuse.
Defendants' compliance with services was sporadic at best. The children had
been twice removed from defendants and returned in attempted reunification
prior to the 2014 removal that led to the guardianship trial.
In January 2013, Harry was convicted of an unrelated incident of
aggravated assault and sentenced to a three-year term of imprisonment; the
A-4736-15T2 6 Division supplied him with services during his incarceration and arranged for
his monthly visitation with the children. Harry attended mental health and drug
treatment after his release from prison in 2015, but his participation became
sporadic. His case was closed in September 2015 after Harry threatened to blow
up a Division office.
In early April 2014, the Division effected an emergency removal of the
children after Carmela struck a pole in the middle of the night while driving
under the influence; she had left the children home alone. Carmela's attendance
at substance abuse counseling thereafter was inconsistent.
Initially, all three children were placed in the same resource home.
Shortly thereafter, however, the Division placed Jack with a different family
because the original resource home did not have a separate room for him and
was licensed for only two children of school age. The Division's plan was to
have the two girls adopted by the resource family, and for Jack to be adopted by
them as well if the required changes could be made to the home. If not, the
Division intended to seek a select home adoption for Jack, who had begun
displaying significant behavioral problems.
Dr. Katz testified at trial and rendered opinions reached after he conducted
evaluations of both defendants and bonding evaluations between each defendant
A-4736-15T2 7 and the children. Based on his testing, Dr. Katz concluded that Harry met
diagnostic criteria consistent with bipolar disorder, "with numerous other
dysfunctional character logical (sic) traits." Dr. Katz noted Harry's "extensive
criminal history[,]" which included violent assaults against men and women, and
that he had been incarcerated twice for assault. Harry admitted to Dr. Katz that
he had threatened Carmela and her mother, E.R., and had violated domestic
violence restraining orders entered against him. Dr. Katz testified that while the
children recognized Harry as their father, "that perception was based more upon
fantasy than reality." So, too, was Harry's stated plan to become a "bounty
hunter[,]" given the numerous arrests in his past.
Based on his testing, Dr. Katz found that Carmela had a "pervasive
compulsive personality disorder with histrionic features[.]" She minimized her
problems by denying any alcohol abuse and offered inconsistent versions of why
the children were removed. Carmela told Dr. Katz that Harry was physically
and emotionally abusive towards her in front of the children, and the doctor
described their relationship as co-dependent and violent. With respect to
Carmela's bonding evaluation, Dr. Katz testified that the children, particularly
Debbie, exhibited a "conflict[ed]" attitude towards her mother, and Carmela
displayed frustration at times in dealing with the children. Dr. Katz concluded
A-4736-15T2 8 that defendants were unable to parent the children, and that the children would
be at risk of abuse and neglect if returned to defendants' care.
Dr. Katz also conducted a bonding evaluation between Debbie and Kathy
and their resource parents. Dr. Katz conducted no bonding evaluation as to Jack,
who was not in a potential adoptive placement at the time. Dr. Katz concluded
that Debbie and Kathy had a "secure bond and stable attachment" to the resource
parents and relied on the resource parents to meet their needs. According to Dr.
Katz, the girls would suffer trauma if removed from the resource parents, and
neither defendant was able to mitigate that trauma. Moreover, Dr. Katz believed
there would be serious and enduring harm to all the children if they were
returned to defendants. He testified that the resource parents were willing to
have Jack live with them and were looking to expand their house to
accommodate him. Dr. Katz recommended that if Jack's adoption by the
resource parents were not possible, select home adoption was the best
alternative.
The trial judge questioned Debbie, then thirteen years' old, in camera.
Debbie wanted to live with Harry, claimed to have a good relationship with C.H.
(Cindy), who married Harry in 2012, and Debbie did not want to be adopted.
She acknowledged having a tumultuous relationship with Carmela.
A-4736-15T2 9 Harry called Cindy as a witness at trial. At the time, she was living in
North Carolina, tending to her ill mother, but said she intended at some point to
move back to New Jersey. Cindy had five children of her own and said she had
a strong relationship with Debbie, Jack and Kathy, even though she
acknowledged having spent little more than one week with them together with
Harry. Harry had offered Cindy as a possible placement for the children.
However, one caseworker testified the Division could not process that request
because of a 1998 referral involving Cindy and her ex-husband. Cindy testified
that it involved her ex-husband's physical abuse of one of their children and was
ruled unsubstantiated.
Harry also called Jack's resource parent, with whom Jack had been living
for about four months, and Debbie's and Kathy's resource parent. Both
defendants testified on their own behalf.
Additionally, Dr. Jason Fleming, a clinical psychologist, offered expert
testimony on behalf of Carmela, who, the doctor observed, was "really trying"
and was "very attentive" to the children. Dr. Fleming asserted that there was a
"healthy, positive and secure attachment" between Carmela and the children,
and that they would suffer harm if Carmela's parental rights were terminated.
However, Dr. Fleming agreed with Dr. Katz that Carmela was presently unable
A-4736-15T2 10 to successfully parent the children on her own, and he suggested that Carmela
"co-parent" the children with her mother, E.R.
The trial judge filed a written opinion containing her findings and
conclusions in support of the judgment of guardianship. We discuss them below
and turn now to the evidence adduced at the remand hearing.
By March 2017, the Division had removed Debbie from her resource
family home; Jack still had not been placed in a pre-adoptive home. Both
children's behavioral and mental health had deteriorated, resulting in multiple
placements, and, in Debbie's case, entry into an inpatient mental health facility
and placement in a shelter. Upon receipt of our order, the remand judge initially
ordered Dr. Katz to supplement his prior evaluations by considering this new
information and to address whether it affected his prior opinions. The doctor's
supplemental report acknowledged concerns about Debbie's and Jack's lack of
permanent placement and the absence of any siblings in Kathy's resource home.
However, as already noted, he could not make any recommendations without
further information, which led to the judge's subsequently ordered evaluations.
Dr. Katz psychologically evaluated both defendants and Carmela's
husband, B.B. (Bob). Dr. Katz testified before the remand judge that Carmela
and her husband were living in E.R.'s basement, Carmela was unemployed, and
A-4736-15T2 11 she had stopped taking her prescribed medications for treatment of depression,
anxiety, post-traumatic stress disorder and bipolar disorder. Dr. Katz noticed
the strong smell of alcohol on Carmela's breath during the interview, even
though she denied having any. Dr. Katz reiterated his opinion offered at trial,
i.e., that Carmela was unable to effectively parent the children.
As for Bob, Dr. Katz noted he, too, emanated the odor of alcohol, although
Bob asserted he had been sober for many months. The doctor noted Bob's
"extensive psychiatric history with long-term psychiatric hospitalizations," his
low-level empathy toward children, and his lack of prior experience as a parent.
Dr. Katz concluded that together, Carmela and Bob could not effectively parent
the children, particularly Debbie and Jack who needed intensive monitoring and
supervision. Dr. Katz continued to support termination of Carmela's parental
rights.
Dr. Katz found no improvement in Harry's mental health or behaviors and
expressed concern that Harry was not receiving treatment. Dr. Katz's initial
opinions about Harry's lack of ability to parent had "become strengthened," and
he opined that no one, including Cindy, had the capacity to curtail those
behaviors and reduce Harry's risk to others. Dr. Katz testified that Debbie and
Jack had exhibited deteriorating behavior, and he opined that Harry would be
A-4736-15T2 12 unable to deal with the children. The doctor conceded that interviewing the
children would have provided him with the best data, but he did not do so.
The remand judge also considered the expert testimony of Dr. Donald
Franklin, a psychologist who evaluated Cindy and Harry and testified on Harry's
behalf. Dr. Franklin confirmed that Harry was suffering from bipolar disorder
and that he needed to be in treatment indefinitely. However, Dr. Franklin opined
that Harry and Cindy were in a positive relationship, which they had maintained
for several years. Dr. Franklin could not give an opinion as to whether Harry
would be able to parent the children with Cindy because he had not done an
assessment of the children to determine the severity of their problems. Thus,
Dr. Franklin said that the "jury [wa]s out" as to whether Harry can care for the
children.
Dr. Fleming testified again on behalf of Carmela regarding his
psychological evaluation of her and Bob. 3 He concluded that Carmela was
significantly more stable but needed to better address her depression, anxiety
and low self-esteem. Dr. Fleming believed that together with her husband and
mother, Carmela could co-parent the children effectively.
3 Dr. Fleming included Carmela's mother, E.R., in his evaluation. The Division's supplemental brief asserts E.R. has since passed away.
A-4736-15T2 13 Kathy's Law Guardian produced Dr. Elizabeth Smith as an expert witness
in psychology.4 Dr. Smith evaluated Kathy and concluded she was "thriving
with limited contact with her siblings[ and] . . . with no contact with her
biological parents, for two years." Kathy told Dr. Smith that living with her
resource parents and her pets made her happy; what made her scared was going
back to her biological parents or being again placed in foster care. Dr. Smith
also interviewed Kathy's resource mother, who the doctor opined was
appropriately fulfilling Kathy's needs.
In a comprehensive oral opinion, the remand judge reviewed the hearing
evidence and the evidence supporting termination as found by the trial judge.
The judge concluded that the change in Debbie's and Jack's circumstances would
have altered the analysis regarding the prong four proof at trial. Neither child
now had a reasonable prospect for long-term placement or adoption. The judge
vacated the judgment terminating defendants' parental rights to Debbie and Jack,
ordered therapeutic visitation between defendants and the two children, and
returned the litigation to the FN docket.
4 Early in the remand proceedings, the judge appointed a separate Law Guardian to represent Kathy, while the original Law Guardian continued to represent Debbie and Jack. A-4736-15T2 14 However, as to Kathy, the judge concluded the child was "thriving," hoped
to be adopted, and was fearful of reuniting with defendants. The judge
explained:
[S]he stands in a totally different position than both [Debbie] and [Jack]. And that standard of [Rule] 4:50 that the change in circumstances would alter [the trial judge's] decision hasn't been met. . . . [T]herefore, I believe the motion regarding [Kathy] should not be granted and that the judgment regarding . . . the parent's termination to [Kathy] should stand.
The judge entered an order denying the motion to vacate the judgment of
guardianship as to Kathy.
II.
We first consider whether the trial evidence supported the entry of the
judgment of guardianship. To terminate parental rights, the Division must prove
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 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;
A-4736-15T2 15 (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.
[N.J.S.A. 30:4C-15.1(a); see also In re Guardianship of K.H.O., 161 N.J. 337, 347–48 (1999).]
"The focus of a termination-of-parental-rights hearing is the best interests of the
child." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012)
(citing N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 110 (2011)).
The four statutory prongs "are neither discrete nor separate. They overlap to
provide a composite picture of what may be necessary to advance the best
interests of the children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.
261, 280 (2007) (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.
Super. 235, 258 (App. Div. 2005)).
Our standard of review is limited. We must uphold the trial court's
findings if "supported by adequate, substantial, and credible evidence." N.J.
Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citing N.J.
Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). We defer to
the judge's factual findings because she had "the opportunity to make first -hand
A-4736-15T2 16 credibility judgments about the witnesses . . . [and] ha[d] a 'feel of the case' that
can never be realized by a review of the cold record." E.P., 196 N.J. at 104
(quoting M.M., 189 N.J. at 293). We accord even greater deference to the
Family Part's factual findings because of its "special jurisdiction and expertise
in family matters[.]" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.
328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Only
when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'
should an appellate court intervene and make its own findings to ensure that
there is not a denial of justice." E.P., 196 N.J. at 104 (quoting N.J. Div. of Youth
& Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
A.
After the close of trial, the judge issued a written statement of reasons for
admitting into evidence several documents offered by the Division over
defendants' objection. These were psychological evaluations of defendants
performed at the Division's behest years prior to the 2014 removal of the
children. The judge found the exhibits were admissible because Dr. Katz relied
upon them in completing his reports "pursuant to [N.J.R.E.] 803(c)(6)[.]" At
trial, Dr. Katz did not cite the exhibits during his testimony as documents he
relied on in rendering his opinions.
A-4736-15T2 17 As we understand his argument, Harry claims that the judge erred in
admitting the documents because she mistakenly found that Dr. Katz had relied
on them when he had not. And, even had Dr. Katz relied on them, the exhibits
were inadmissible hearsay. Harry contends this undermines the judge's reliance
on Dr. Katz's opinions in finding the Division carried its burden of proof.
"We grant substantial deference to the trial judge's discretion on
evidentiary rulings[] and will only reverse when the trial judge's ruling was 'so
wide of the mark that a manifest denial of justice resulted.'" N.J. Div. of Youth
& Family Servs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012) (quoting
State v. Carter, 91 N.J. 86, 106 (1982)) (citations omitted). "However, no
deference is accorded when the court fails to properly analyze the admissibility
of the proffered evidence." E&H Steel Corp. v. PSEG Fossil, LLC, 455 N.J.
Super. 12, 25 (App. Div. 2018) (citing Konop v. Rosen, 425 N.J. Super. 391,
401 (App. Div. 2012)).
Initially, Harry's claim that the judge mistakenly believed Dr. Katz relied
on the exhibits is not entirely accurate. The doctor mentioned two of the exhibits
in his reports, which were also admitted into evidence at trial without objection.
"[U]nder N.J.R.E. 703, an expert may give the reasons for his opinion and
the sources on which he relies, but that testimony [cannot] establish the
A-4736-15T2 18 substance of the report of a non-testifying [expert]." Agha v. Feiner, 198 N.J.
50, 64 (2009) (citing Day v. Lorenc, 296 N.J. Super 262, 267 (App. Div. 1996)).
The "expert testimony [at trial cannot] serve as 'a vehicle for the wholesale
[introduction] of otherwise inadmissible evidence.'" Id. at 63 (second alteration
in original) (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 480–81 (App.
Div. 2002)). Therefore, pursuant to N.J.R.E. 703, it was error to admit the
exhibits into evidence because of any actual or perceived reliance by Dr. Katz.
However, "Rule 5:12-4(d) permits the Division to introduce 'reports by
staff personnel or professional consultants' into evidence provided the
documents satisfy the requirements of the business records exception, N.J.R.E.
803(c)(6) and 801(d)." M.G., 427 N.J. Super. at 173 (citing N.J. Div. of Youth
& Family Servs. v. B.M., 413 N.J. Super. 118, 129 (App. Div. 2010)). "[E]xpert
conclusions or diagnoses within such reports are subject to a further
admissibility determination under N.J.R.E. 808." N.J. Div. of Child Prot. &
Permanency v. A.D., 455 N.J. Super. 144, 158 (App. Div. 2018) (citing M.G.,
427 N.J. Super. at 173). Although the exhibits were admissible as business
records, the judge failed to redact those portions that contained complex
psychological diagnosis and opinions. See, A.D., 455 N.J. Super. at 158.
A-4736-15T2 19 Nevertheless, nothing in the judge's written decision supporting the
judgment of guardianship demonstrates she relied on the disputed exhibits, or
that her findings and conclusions regarding Dr. Katz's testimony had anything
to do with whether the expert relied upon the disputed evidence. As such, any
error in failing to redact included hearsay within the exhibits was harmless. R.
2:10-2.
B.
Turning to defendants' substantive arguments as to the first prong of the
statutory test, Carmela contends the Division failed to prove that she had harmed
the children or subjected them to a substantial risk of harm. Harry argues that
the Division relied on evidence beyond the allegations pled in its complaint, the
judge failed to distinguish between the actions of each parent, and the judge
erroneously found the risk of future harm without support in the record.
Pursuant to the first prong of the statute, the Division must establish "[t]he
child'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). "[T]he Division
must prove harm that 'threatens the child's health and will likely have continuing
deleterious effects on the child.'" N.J. Div. of Youth & Family Servs. v. A.L.,
213 N.J. 1, 25 (2013) (quoting K.H.O., 161 N.J. at 352). The focus is not on a
A-4736-15T2 20 single or isolated harm, but on "the effect of harms arising from the parent-child
relationship over time on the child's health and development." K.H.O., 161 N.J.
at 348. The Division need not "wait 'until a child is actually irreparably impaired
by parental inattention or neglect.'" F.M., 211 N.J. at 449 (quoting In re
Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).
The trial judge found that Carmela's continued failure to abstain from drug
and alcohol use endangered the children. The judge credited Dr. Katz's
opinions, particularly regarding Carmela's mental stability and ability to parent
in the future. The judge accepted Dr. Katz's conclusions about Harry's violent
past and the likelihood of future aggressive or violent conduct that would put
the children at risk.
Carmela contends that evidence of her intractable substance abuse was
insufficient proof under prong one; however, the judge did not rely solely upon
that finding. The judge cited the reason for the children's removal, i.e.,
Carmela's DWI that occurred late at night after she left the children alone,
Carmela's mental health, and the opinions of both Dr. Katz and Dr. Fleming that
she was unable to parent the children on her own in the foreseeable future.
Harry incorrectly argues that the judge relied on his incarceration as proof
of harm; she did not. We reject out of hand Harry's claim that the judge
A-4736-15T2 21 conflated Carmela's conduct with his and failed to separately assess the
Division's proofs as to whether he harmed the children or posed the risk of future
harm. The judge's opinion repeatedly discusses Harry's conduct and diagnoses,
both in the context of the family unit and otherwise. To the extent we have not
addressed defendants' other arguments regarding the prong one evidence, they
lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
C.
Under N.J.S.A. 30:4C-15.1(a)(2), "the inquiry centers on whether the
parent is able to remove the danger facing the child." F.M., 211 N.J. at 451
(citing K.H.O., 161 N.J. at 352). "Prong two may also be satisfied if 'the child
will suffer substantially from a lack of . . . a permanent placement and from the
disruption of [the] bond with foster parents[.]'" Ibid. (first alteration in original)
(quoting K.H.O., 161 N.J. at 363); see also N.J. Div. of Youth & Family Servs.
v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004) ("[T]he . . . statute[] reflect[s]
reforms acknowledging the need for permanency of placements by placing limits
on the time for a birth parent to correct conditions in anticipation of reuniting
with the child.").
As to the second prong, the trial judge concluded that despite having
received services from the Division for years, both defendants were "unwilling
A-4736-15T2 22 or unable to correct the harm that led to the children's removal." The judge
credited the testimony of Dr. Katz, "that both parents were unable to parent the
children now or in the foreseeable future due to a pattern of behavior that began
with the first contact the Division made with the parents in 2003." She noted
Dr. Fleming's "same determinations" regarding Carmela. The judge also found
that neither parent had the financial ability to provide a stable and safe home for
the children. "Based upon the totality of the credible evidence and Dr. Katz'[s]
expert opinion," the judge concluded "the Division ha[d] proven by clear and
convincing evidence that the defendants are unable or unwilling to eliminate the
harm to the children and delaying the permanent placement will add to the
harm."
Carmela argues that by the time of trial, she was working, had her own
home apart from Harry, and was compliant with the Division's services. Harry
contends the judge once again conflated the evidence against Carmela in
considering the Division's proofs against him on prong two, and that there was
no substantial credible evidence that he was unwilling or unable to prevent any
future harm to the children. We again disagree.
Carmela's history of past drug and alcohol abuse was undisputed, and her
inability to address the issues is beyond cavil. Even Dr. Fleming concluded that
A-4736-15T2 23 any progress she had made needed to be tempered with a recognition of her
serious mental health issues and the likelihood that she could not parent the
children without the help of others.
Harry points to positive developments in his employment and housing at
the time of trial. However, they were speculative at best. The judge fairly
considered the evidence against Harry, including his intractable violent behavior
toward Carmela and others, as well as his unwillingness to abide by prior
restraining orders entered against him. In short, the prong two evidence was
clear and convincing.
D.
N.J.S.A. 30:4C-15.1(a)(3) requires the Division to make "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 to "consider[]
alternatives to termination of parental rights[.]" However, "[e]xperience tells us
that even [the Division's] best efforts may not be sufficient to salvage a parental
relationship." F.M., 211 N.J. at 452. Moreover, "[e]ven if the Division ha[s]
been deficient in the services offered to" a parent, reversal is not necessarily
"warranted, because the best interests of the child controls[]" the ultimate
A-4736-15T2 24 determination. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576,
621 (App. Div. 2007).
Although N.J.S.A. 30:4C-12.1(a) requires the Division to search for and
assess potential relatives as placement resources, it "may decide to pursue the
termination of parental rights if [it] determines that termination of parental rights
is in the child's best interests." N.J.S.A. 30:4C-12.1(c); see also N.J. Div. of
Child Prot. & Permanency v. C.S., 432 N.J. Super. 224, 229 (App. Div. 2013)
(noting that under subsection (c), the child's best interests is always the
"polestar").
In her written opinion, the trial judge discussed the services provided to
defendants over the Division's long history with the family. The judge
acknowledged that the Division "could have done more to ascertain [Cindy's]
qualifications to be a resource parent," but found that she and Harry had no
"marital relationship[,]" since Cindy was living in North Carolina and had no
"real relationship with the children." The judge also noted that other people
Harry referred to the Division as possible resource placements never filed an
application.
Both defendants argue the Division failed to consider alternatives to
termination of their parental rights, and Harry additionally contends the Division
A-4736-15T2 25 failed to provide adequate services focused on reunification. We reject the
arguments.
Without any authority, Harry seemingly contends that consideration of
services the Division provided prior to the 2014 removal was irrelevant because
they were not provided for the purposes of reunification after 2014. He cites no
authority for this proposition, but, more importantly, the argument fails to
recognize the importance of the two prior removals and failed attempts at
reunification, which amply supported the judge's finding as to the adequacy of
the Division's services. We also reject Harry's claim that the Division abdicated
its obligations because he was incarcerated. The record does not support the
contention.
Defendants' argument that the Division failed to consider other relatives
for placement is also unpersuasive. The judge noted that the Division could
have done more to clarify whether the referral in Cindy's past was against her
husband, as she claimed, and the circumstances that resulted in the Division's
alleged involvement at that time. Harry argues the judge's failure to require the
Division to produce any and all of its records from the 1998 referral, despite his
counsel's repeated requests, equates to a failure of proof as to prong three.
However, the judge explained the reasons why Cindy was not a realistic
A-4736-15T2 26 placement alternative. She was living in North Carolina, had no established date
for her return to New Jersey, and had never lived for more than a total of ten
days with Harry and the children together.
We also reject Carmela's claims that the Division failed to consider
adequately her mother as a placement resource. The testimony at trial indicated
that E.R. did not offer herself as a placement resource. To the extent we have
not specifically addressed defendants' other contentions, they lack sufficient
merit to warrant discussion. R. 2:11-3(e)(1)(E).
E.
Prong four requires the Division to prove "[t]ermination of parental rights
will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). It "serves as a
fail-safe against termination even where the remaining standards have been
met." G.L., 191 N.J. at 609. "The question ultimately is not whether a biological
mother or father is a worthy parent, but whether a child's interest will best be
served by completely terminating the child's relationship with th[e] parent."
E.P., 196 N.J. at 108.
As the Court has explained, "[t]o determine whether the comparative harm
is proscribed by the fourth prong in a case involving a child in foster care, . . .
the court must inquire into the child's relationship both with [its] biological
A-4736-15T2 27 parents and [its] foster parents." N.J. Div. of Youth & Family Servs. v. I.S., 202
N.J. 145, 181 (2010) (alterations in original) (quoting K.H.O., 161 N.J. at 355).
Typically, "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." F.M., 211 N.J. at 453 (quoting M.M., 189 N.J. at 281).
However, "courts have recognized that terminating parental rights without
any compensating benefit, such as adoption, may do great harm to a child." E.P.,
196 N.J. at 109 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.
591, 610–11 (1986)). "Such harm may occur when a child is cycled through
multiple foster homes after a parent's rights are severed." Ibid.
The trial judge credited Dr. Katz's testimony that the children had no
appreciable parental attachment to defendants. To the contrary, Debbie and
Kathy had a strong bond with their resource parents. 5 The girls' resource mother
testified at trial that she wished to have all three children ultimately reside with
her and her husband, and that Jack was spending time visiting his sisters and had
a seemingly good relationship with them and the resource family. The judge
5 We note in passing that although Debbie told the trial judge during the in camera interview she did not wish to be adopted, a child's wishes "should be but one factor" in the judge's decision making calculus. E.P., 196 N.J. at 113. A-4736-15T2 28 noted that Dr. Fleming agreed that Carmela was unable to parent the children by
herself in the foreseeable future.
In their original briefs, defendants essentially challenged the weight that
the judge gave to Dr. Katz's opinions regarding the bonding evaluations. At the
time, the Law Guardian echoed those arguments. However, now we consider
only whether the trial evidence supported the judge's conclusion that the
Division had met it burden of proof regarding prong four as to Kathy. We
conclude the evidence was sufficient to support the judgment of guardianship as
to Kathy.
III.
The issue now becomes whether the remand judge mistakenly exercised
her discretion by failing to vacate the judgment of guardianship. See J.N.H.,
172 N.J. at 473 ("It is within the trial court's sound discretion, guided by
equitable principles, to decide whether relief should be granted pursuant to Rule
4:50-1." (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994))).
We will not reverse the judge's decision "unless it represents a clear abuse of
discretion." Ibid. (quoting Hous. Auth., 135 N.J. at 283).
A motion brought pursuant to the Rule must be 1) supported by changed
circumstances; and, 2) the moving party bears the burden of proving that
A-4736-15T2 29 subsequent events justify relief. Ibid.; see also N.J. Div. of Youth & Family
Servs. v. L.L., 201 N.J. 210, 225–26 (2010) (applying same standards to motion
to vacate judgment of Kinship Legal Guardianship); N.J. Div. of Youth &
Family Servs. v. T.G., 414 N.J. Super. 423, 434–36 (App. Div. 2010) (applying
same standards to motion to vacate voluntary surrender of parental rights) .
Rule 4:50-1(e) provides relief from "prospective application" of a
judgment that is "no longer equitable." "The moving party 'bears the burden of
proving that events have occurred subsequent to the entry of a judgment that,
absent the relief requested, will result in "extreme" and "unexpected" hardship.'"
J.N.H., 172 N.J. at 473 (quoting Hous. Auth., 135 N.J. at 285–86). Subsection
(f) of the Rule provides relief for "any other reason[.]" "Similar to subsection
(e), because of the importance in the finality of judgments, relief under
subsection (f) is available only when 'truly exceptional circumstances are
present.'" Ibid. (quoting Hous. Auth., 135 N.J. at 286).
"Regardless of the basis, vacation of a judgment under Rule 4:50-1 should
be granted sparingly." Id. at 473–74 (citing Pressler, Current N.J. Court Rules,
comment 1.1 on R. 4:50-1 (2001)). Furthermore, "in a parental termination case,
the primary issue is not whether the movant was vigilant in attempting to
vindicate his or her rights or even whether the claim is meritorious, but what
A-4736-15T2 30 effect the grant of the motion would have on the child." Id. at 475. Applying
these standards to the facts of this case, it is clear that the remand judge did not
mistakenly exercise her discretion by denying defendants' motion to vacate the
judgment of guardianship as to Kathy.
Both defendants' supplemental briefs reargue the points raised after trial,
specifically, that the evidence supporting the judgment of guardianship was
insufficient. Carmela does so in the context of the remand judge's purported
misapplication of the holding in J.N.H.
The remand judge seemingly focused on the correctness of the original
judgment, and whether evidence of changed circumstances regarding the
children undermined the trial judge's legal conclusions supporting termination.
As the Court made clear in J.N.H.,
The very purpose of a Rule 4:50 motion is not, as in appellate review, to advance a collateral attack on the correctness of an earlier judgment. Rather, it is to explain why it would no longer be just to enforce that judgment. The issue is not the rightness or wrongness of the original determination at the time it was made but what has since transpired or been learned to render its enforcement inequitable.
[172 N.J. at 476.]
" [O]ur examination of whether defendant's motion was properly denied
is guided by the two-pronged examination articulated in J.N.H." T.G., 414 N.J.
A-4736-15T2 31 Super. at 435. The judge found circumstances had changed since the judgment
was entered as to Debbie and Jack because neither child now had reasonable
prospects for adoption. Focusing on prong four, the judge granted the motion
as to those two children.
However, she reviewed the remand evidence regarding Kathy and
concluded that defendants failed to demonstrate sufficient changed
circumstances in the first instance. In other words, the judge found that neither
developments in defendants' lives since the judgment was entered, nor "the
minimal change in circumstances of [Kathy's] position," were sufficient to
vacate the judgment. We defer to the remand judge's factual findings, which
were amply supported by the credible evidence in the record. See, e.g., R.G.,
217 N.J. at 552. We agree that there was little evidence of change in defendants'
lives that justified the extraordinary relief of vacating the judgment of
guardianship, and, as the judge noted, the only change in Kathy's circumstances
was the absence of Debbie from her resource home and the likelihood that Kathy
would reside in a home without either sibling.
Nevertheless, even if the judge mistakenly concluded the change in
Kathy's circumstances was insignificant, we affirm for reasons in addition to
those expressed in the judge's oral opinion. See, e.g., Hayes v. Delamotte, 231
A-4736-15T2 32 N.J. 373, 387 (2018) ("A trial court judgment that reaches the proper conclusion
must be affirmed even if it is based on the wrong reasoning." (citing Isko v.
Planning Bd. of Livingston, 51 N.J. 162, 175 (1968))).
Simply put, neither defendant demonstrated that the judgment of
guardianship as to Kathy was now inequitable or unjust, i.e., that exceptional
circumstances made prospective application of the judgment was no longer in
Kathy's best interest and presented an extreme and unexpected hardship to the
child. J.N.H., 172 N.J. at 473–74. The record is replete with the remand judge's
factual findings to the contrary.
We reject the procedural arguments Harry raises in his supplemental brief.
Our remand order only required the judge to consider defendants' motions to
vacate the guardianship judgment if they were made. It set no parameters on the
exercise of the judge's discretion as to the conduct of the proceedings after
defendants' motions were made. Harry contends the judge's refusal to permit
new bonding evaluations denied him due process and a full development of what
had transpired since entry of the judgment. We disagree.
In our view, the judge accorded both defendants the opportunity to present
evidence of changed circumstances in their lives and in Kathy's life. The judge
permitted a psychological evaluation of Kathy by Dr. Smith. Defendants then
A-4736-15T2 33 had the opportunity to cross-examine Drs. Katz and Smith. Both defendants
produced their own expert testimony. As the remand judge explained in denying
requests for new bonding evaluations, Kathy had not seen her parents for a
substantial period of time. We cannot conclude the judge mistakenly exercised
her discretion by limiting the expert testimony at the hearing.
We already addressed Harry's claim that the Division's "misconduct" in
failing to evaluate Cindy as a placement resource requires reversal of the
judgment, and we need not discuss the issue again in the context of Harry's
supplemental briefing. To the extent we have not otherwise addressed Harry's
arguments, they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
A-4736-15T2 34