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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1103-19T4
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
S.S.,
Defendant,
and
J.H.P.,
Defendant-Appellant. ___________________________
IN THE MATTER OF THE GUARDIANSHIP OF C.A.P. and C.R.P., minors. ____________________________
Submitted December 9, 2020 – Decided December 24, 2020
Before Judges Alvarez and Mitterhoff. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-0030-19.
Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Wilkes, Assistant Deputy Public Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Sookie Bae-Park, Assistant Attorney General, of counsel; Frank R. Moceri, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Todd Wilson, Designated Counsel, on the brief).
PER CURIAM
Defendant J.H.P.1 appeals from the October 25, 2019 judgment of
guardianship terminating his parental rights as to his children, C.A.P. and C.R.P.2
On appeal, J.H.P. argues that (1) the trial judge improperly relied on expert testimony
1 Pursuant to Rule 1:38-3(d)(12), we use initials to protect the confidentiality of the participants in these proceedings. 2 The judgment also terminated the parental rights of the children's mother, S.S. However, S.S. did not participate in the underlying litigation and is not appealing the termination of her parental rights.
A-1103-19T4 2 that constituted a net opinion;3 (2) the judge impermissibly relied on attorney
stipulations; (3) the Division of Child Protection and Permanency (Division) failed
to establish the prongs of the "best interests standard" embodied in N.J.S.A. 30:4C-
15.1(a); and (4) he received ineffective assistance of counsel. The Law Guardian
supported termination during the trial and, on appeal, joins the Division in urging us
to reject J.H.P.'s arguments and affirm. Having reviewed the record, and considering
the applicable legal principles, we affirm substantially for the reasons set forth in
Judge Marc Brown's thorough and thoughtful fifty-seven-page oral decision. We
add only the following comments.
The Division first became involved with J.H.P. and S.S. on April 2, 2014 due
to a report that J.H.P. allegedly posted on Facebook that he was smoking and selling
marijuana while caring for C.R.P. The next referral took place on August 8, 2016,
and during the subsequent investigation, J.H.P. admitted to frequent substance
abuse. The Division was referred again on October 19, 2016 after allegations that
J.H.P. tried to overdose on Tylenol PM. While at Trinitas Hospital, J.H.P. admitted
he was diagnosed with Oppositional Defiant Disorder (ODD), bipolar disorder,
3 J.H.P. did not file a motion seeking to bar the doctor's testimony as a net opinion, nor did J.H.P. object to this testimony at trial. Because this issue was not raised below, we do not address it. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available"). A-1103-19T4 3 explosive disorder, and slight depression as a teenager, but stated he was not on
medication. The last referral, which initiated the present litigation, occurred on
January 29, 2017 due to a report that J.H.P. was using drugs and threatened to kill
the children as well as himself. The Elizabeth Police Department discovered a large
knife in J.H.P.'s bedroom, which he claimed was to cut fruit at night.
The children were removed from J.H.P.'s custody on January 30, 2017. After
several unsuccessful placements, the children were eventually placed with the
paternal grandmother R.Q. on April 12, 2019.
After the children's removal from his care, J.H.P. engaged in sporadic
visitation with the children until his admission to Cornerstone Behavioral Treatment
Center from June to August 2017. J.H.P. was subsequently admitted to Greystone
Psychiatric Hospital in January 2018,4 where he reported that at the age of thirteen
he had been diagnosed with Bipolar Disorder. J.H.P. was ultimately discharged
from Greystone on or about March 18, 2019. Dr. Sangeet Khanna, a psychiatrist at
Greystone, indicated that J.H.P.'s admission records as well as the information
received during his admission met the threshold of the duty to warn under N.J.S.A.
2A:62A-16(b).
4 While at Greystone, J.H.P. revealed that he was refusing to take medication because he was "asymptomatic," and was not participating in any services. A-1103-19T4 4 After his discharge from Greystone, the Division referred J.H.P. for substance
evaluations at the Child Protection Substance Abuse Initiative (CPSAI), but he
missed two appointments on April 9 and April 16, 2019. J.H.P. did, however, attend
an appointment on April 23, 2019, where he tested positive for marijuana use. The
diagnostic impression revealed that J.H.P. did "not understand the risk associated
with using illicit drugs and how his use can contribute to more mental health
instability." CPSAI recommended that J.H.P. attend a co-occurring program at
Community Care Behavioral Health. On May 22, 2019, the intake coordinator at
Community Care informed the Division that J.H.P. had been closed out the program
for failing to attend three intake appointments. Since his release from Greystone,
J.H.P. attended only seven out of twenty-nine possible visits.
At trial, Dr. Allison Strasser Winston testified as to her June 22, 2018
psychological and bonding evaluation with J.H.P. Dr. Winston testified that her
clinical interview with J.H.P. revealed that he was "guarded" and "minimized a lot
of the concerns that" the Division raised. Dr. Winston noted that J.H.P. indicated he
smokes as much as "twice a day" and has "experimented with Molly." In that regard,
Dr. Winston stated that J.H.P. admitted he "would sometimes be under the influence
of marijuana when he was taking care of children" and denied the fact it affected his
parenting ability.
A-1103-19T4 5 Dr. Winston indicated that the results of the Personality Assessment Inventory
(PAI) revealed that, despite presenting in a "highly defensive" manner, J.H.P. still
had an elevated score on the paranoid subscale and exhibited "significant paranoid
symptomology." Dr. Winston observed that the PAI evinced possible diagnoses of
"Adjustment Disorder Unspecified, Bipolar-1 Disorder, Substance Dependence, and
an Unspecified Personality Disorder." Dr. Winston opined as to J.H.P.'s paranoid
thought processes, including his beliefs that "undercover cops always watching him"
and that his mother and sister "made false allegations with (or [against]) him" which
resulted in his hospitalization.
Dr. Winston expressed concern that J.H.P. had "no insight into his mental
health issues" because he refused to acknowledge he has mental health issues and,
because he refused to take his mediation, poses a risk of harm to himself and others.
Dr. Winston was particularly concerned because "people with a psychoses do kind
of incorporate other people who are in their environment into their psychotic
thinking" and that "something could happen that would make him believe that the
children are out to hurt him[,] . . . [and] he could hurt the children trying to protect
himself from this delusional thought that the children want to hurt him." Dr. Winston
believed that if the children were returned to J.H.P., it would cause them "significant
A-1103-19T4 6 harm," and J.H.P.'s "serious untreated mental health issues" posed a "very high risk"
to them.
Based on her observations during the bonding evaluation, Dr. Winston opined
that, although the children were comfortable with J.H.P., they did not view him as a
primary caregiver, but rather as "the fun Dad" and not "the person that they go to
have their needs met." Dr. Winston indicated that there would be "some harm" if
J.H.P.'s parental rights were terminated, but it would not rise to the level of "serious
and enduring emotional harm." In that same vein, Dr. Winston testified that
removing the children from R.Q. would cause "serious and enduring emotional
harm" and that J.H.P. would be unable to mitigate this harm because he failed to
seek "any services for himself," so it would be "very difficult to expect that he would
seek service[s] for his children."
The Division offered Lynette Bernardo, one of the caseworkers assigned to
J.H.P.'s case, to testify. Bernardo testified that the children "seemed happy" with
R.Q. and found R.Q.'s home "suitable" for them. Bernardo’s impression of the
children’s relationship with R.Q. was "happy and comfortable," and that "they
seemed more at home there." Bernardo believed that R.Q. was "a good provider for
the children" and "loves them." Bernardo’s understanding was that R.Q. wanted to
adopt the children. Bernardo testified the Division informed R.Q. of the Kinship
A-1103-19T4 7 Legal Guardian option and that, ultimately, it was not a viable alternative because
R.Q. wanted to adopt the children, believing it was in their best interest.
J.H.P.'s testimony substantiated many of Dr. Winston's concerns. J.H.P.
indicated that he was not currently visiting the children because he believed the
Division "has it out for [him]" and did not want to escalate issues with Bernardo.
J.H.P. believed that he was committed to Greystone simply because he was homeless
and denied the fact that he was admitted for his serious mental health issues. J.H.P.
acknowledged that, while at Greystone, several doctors prescribed medication that
he simply refused to take.5 J.H.P. claimed that he did not attend outpatient services
at Community Care due to "transportation issues," despite the fact that the Division
provided him with a bus card and train tickets for this very purpose.
J.H.P. admitted that he smoked marijuana "frequently" and stated that he did
so "in the room next to [the children], when they were watching TV." J.H.P. also
admitted to huffing inhalants from aerosol cans prior to his admission at Greystone.
J.H.P. testified that he was not currently enrolled in any program for substance abuse
treatment or rehabilitation. J.H.P. did not believe such treatment would be
"beneficial in any way," describing it as "counterintuitive." J.H.P. stated that if he
5 J.H.P. testified that he refused to take the anti-psychotropic medication because he assumed it would look better if he was discharged without taking medication. A-1103-19T4 8 were to attend substance abuse treatment, nothing would change; whenever he had
the time, he would "to go to the bar and drink a beer[.]"
J.H.P. testified that he remains unemployed but has been receiving Social
Security since childhood due to his earlier mental health diagnoses. Moreover,
J.H.P. conceded that he was only able to lease an apartment with the assistance of
Bridgeway Tri-County Residential Intensive Support Team (RIST), a program that
was designed to assist people with mental health issues re-enter the community after
being discharged from a psychiatric facility.
At the conclusion of trial, the trial judge delivered an oral opinion terminating
J.H.P. and S.S.'s parental rights after finding the Division had satisfied the four
prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The judge
found Dr. Winston to be "extremely credible" and observed no contradictions in her
testimony. Likewise, the judge found Bernardo to be "reasonable" and "extremely
credible." The judge found that J.H.P.'s testimony, on the other hand, was
"incredible" and determined that J.H.P. continued to "refuse to acknowledge his
problems that led to the removal of the children from his care years ago" while still
continuing "to blame others for his own problems and issues, including mental health
and substance abuse." The judge observed that J.H.P. has no insight as to his
problems and their effect on the children.
A-1103-19T4 9 The trial judge found that J.H.P. had ongoing, unmitigated mental health and
drug problems which continued to endanger the children's health and development.
The judge also determined that J.H.P. refused to follow the recommendations of
health care professionals that he engage in therapy and take psychotropic medication
and failed to comply with the numerous opportunities for treatment. The judge,
highlighting the fact that J.H.P. only visited the children seven times despite having
twenty-nine opportunities to do so, noted that "the only time that [J.H.P.] was
interested in seeing the children as to maintain a relationship with them, was when
no effort was required of him. When he was required to do anything to see the
children, he chose to do nothing." The judge determined that the Division had made
reasonable efforts to supply rehabilitative and other services, as well as to explore
alternative placements for the children. The trial judge found that R.Q. wanted to
adopt the children after being fulling informed as to the option of KLG.
An accompanying order terminating parental rights was entered on October
25, 2019. This appeal ensued.
I.
Our scope of review on appeals from orders terminating parental rights is
limited. In such cases, we will generally uphold the trial judge's factual findings, so
long as they are "supported by adequate, substantial, and credible evidence." New
A-1103-19T4 10 Jersey Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014) (citing New
Jersey Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)). Indeed, we
must give substantial deference to Family Part judges' special expertise and
opportunity to have observed the witnesses firsthand and evaluate their credibility.
Id. at 553. Thus, a termination decision should only be reversed or altered on appeal
if the trial judge's findings are "so wholly unsupportable as to result in a denial of
justice." New Jersey Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511
(2004) (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).
II.
J.H.P. argues that the trial judge impermissibly relied on the stipulations set
forth in the July 25, 2019 letter because they were unsupported by any documentary
evidence. J.H.P. also contends that the judge improperly relied on Bernardo's
hearsay testimony.6 We are not persuaded.
Because J.H.P.'s counsel agreed to stipulate to this evidence at trial, he is
barred from challenging its admissibility on appeal under the doctrine of invited
6 "[H]earsay subject to a well-founded objection is generally evidential if no objection is made." N.J. Div. of Child Prot. & Permanency v. J.D., 447 N.J. Super. 337, 348-49 (App. Div. 2016). We are untroubled where, as here, "objectionable hearsay is admitted in a bench trial without objection," because "we presume that the fact-finder appreciates the potential weakness of such proofs, and takes that into account in weighing the evidence." Id. at 349. A-1103-19T4 11 error. "Under that settled principle of law, trial errors that were induced, encouraged
or acquiesced in or consented to by defense counsel ordinarily are not a basis for
reversal on appeal." State v. A.R., 213 N.J. 542, 561 (2013) (internal quotation
marks omitted). "'The doctrine of invited error operates to bar a disappointed litigant
from arguing on appeal that an adverse decision below was the product of error,
when that party urged the lower court to adopt the proposition now alleged to be
error.'" N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 340 (2010).
Pursuant to M.C. III, J.H.P.'s belated evidentiary arguments are now barred by the
doctrine of invited error as his counsel consented, on multiple occasions, to the
stipulated material. We are mindful of our Court's reluctance to "automatically apply
the doctrine [of invited error] if it were to 'cause a fundamental miscarriage of
justice.'" Id., 201 N.J. at 342 (quoting Brett v. Great Am. Rec., 144 N.J. 479, 508
(1996)). We are convinced, however, that "this case presents no fundamental
injustice that would warrant relaxing the invited error doctrine." Ibid.
III.
We also reject J.H.P.'s argument that the Division failed to satisfy the best-
interests standard to justify the termination of his parental rights. Parents have a
constitutionally protected right to the care, custody, and control of their children. In
re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, that right is not
A-1103-19T4 12 absolute. R.G., 217 N.J. at 553; N.J. Div. of Youth & Family 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 & Family Servs. v. G.M., 198
N.J. 382, 397 (2009). To effectuate these concerns, the Legislature created a test to
determine when it is in the child's best interest to terminate parental rights. To
terminate parental rights, N.J.S.A. 30:4C-15.1(a) requires the Division to prove four
prongs 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 [her] resource family parents would cause serious and enduring emotional or psychological harm to the child;
(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 [judge] has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.7
7 J.H.P. does not address the fourth prong of N.J.S.A. 30:4C-15.1(a) and, therefore, we will not discuss it. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived."). A-1103-19T4 13 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 Children by L.A.S., 134 N.J. 127, 139 (1993)).
A. Prongs One and Two8
We agree with the trial judge that J.H.P.'s failure to treat his ongoing mental
health and substance abuse issues using the services provided through the Division
was an adequate basis to find N.J.S.A. 30:4C-15.1(a)(1) and (2) were satisfied. See,
e.g., N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012)
("Mental illness, alone, does not disqualify a parent from raising a child. But it is a
different matter if a parent refuses to treat his [or her] mental illness" and the "mental
illness poses a real threat to [the] child . . . . "); N.J. Div. of Youth & Family Servs.
v. H.R., 431 N.J. Super. 212, 224 (App. Div. 2013) (affirming a finding of prong
8 The first two prongs of the best interest standard, N.J.S.A. 30:4C-15.1(a)(1) and (2), are related "components of the harm requirement," and "evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Because the first two prongs are intertwined, we "address prongs one and two of that test" together. See E.P., 196 N.J. at 104. A-1103-19T4 14 two where father enrolled in drug treatment programs but "routinely failed to
complete them with positive results"); see also P.P., 180 N.J. at 512 (affirming the
termination of parental rights where the parents were "unable to provide for their
children in the past due to their significant and long-standing substance abuse
histories and to their repeated failure to comply with DYFS recommendations and
court orders for services.").
Here, J.H.P. failed to recognize that he was committed to Greystone for his
serious mental health issues; instead, he chose to believe he was admitted because
he was homeless. While at Greystone, J.H.P. refused to take psychotropic
medication that was prescribed by multiple doctors. Similarly, J.H.P. also has failed
to mitigate his recurring substance abuse issues. J.H.P. admitted that he smoked
marijuana "frequently" and did so in the next room while the children watched
television. Even after various referrals, J.H.P. was not enrolled in any program for
substance abuse treatment or rehabilitation at the time of trial. In fact, J.H.P. stated
that even if he were to attend treatment, nothing would change and that whenever he
had the chance he would go to the bar and drink. Because the judge's decision was
supported by adequate, substantial, and credible evidence in the record, we discern
no basis to disturb it.
A-1103-19T4 15 B. Prong Three
The trial judge also correctly concluded that the Division offered reasonable
services to J.H.P. and investigated alternatives to termination. In that regard, various
services and referrals were offered to J.H.P. since he first became involved with the
Division. The record also clearly shows that the Division investigated and ruled out
other options before resorting to terminating J.H.P.'s parental rights. The Division
explored the possibility of a Kinship Legal Guardian (KLG) agreement with J.H.P.'s
mother, R.Q. Bernardo testified that the Division informed R.Q. of the KLG option
and that, ultimately, it was not a viable alternative because R.Q. wanted to "adopt
the children, because she felt like that was what was in their best interest." Dr.
Winston also opined that KLG was not a good alternative under these circumstances
because it did not provide the children with the same level of stability. Where, as
here, the "the permanency provided by adoption is available, [KLG] cannot be used
as a defense to termination of parental rights." R.G., 217 N.J. at 558-59 (quoting
P.P., 180 N.J. at 513) (alteration in original). We conclude the trial judge's
determination that the Division satisfied prong three of N.J.S.A. 30:4C-15.1(a) was
amply supported by adequate and credible evidence in the record.
To the extent we have not addressed the remaining arguments, we are satisfied
they lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
A-1103-19T4 16 Affirmed.
A-1103-19T4 17