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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4778-17T2
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
T.U.B.,
Defendant,
and
J.E.C.,
Defendant-Appellant. _____________________________
IN THE MATTER OF THE GUARDIANSHIP OF C.I.B.,
a Minor. _____________________________
Submitted April 8, 2019 – Decided April 18, 2019
Before Judges Sabatino and Mitterhoff. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0164-14.
Joseph E. Krakora, Public Defender, attorney for appellant (James P. Gentile, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Jason W. Rockwell, Assistant Attorney General, of counsel; Lisa J. Rusciano, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
This Title 30 guardianship matter brought by the Division of Child
Protection and Permanency ("the Division") returns to our court following a
limited remand we ordered in a published opinion dated May 22, 2017. See N.J.
Div. of Child Prot. & Permanency v. T.U.B., 450 N.J. Super. 210 (App. Div.
2017). In our opinion, we held that the special Title 9 hearsay exception codified
at N.J.S.A. 9:6-8.46(a)(4) allowing the admission of certain out-of-court
statements by children does not extend to Title 30 termination cases. Id. at 230.
Because the Family Part in this case admitted at trial and considered such
inadmissible hearsay, we remanded the case for reconsideration, directing the
trial court to ignore the hearsay statements in its analysis.
A-4778-17T2 2 On remand, the judge who had presided earlier over the guardianship trial
reaffirmed her original determination to terminate the parental rights of
defendant J.E.C. ("the father") as to his son, C.I.B. ("Calvin"). 1 The father now
appeals that second judgment of termination. T.U.B. ("the mother") did not
appeal the initial judgment terminating her parental rights and was dismissed
from the litigation on remand. We affirm.
I.
The Facts
We summarize pertinent facts from the record, most of which were
presented in greater detail in our published opinion. Id. at 215-26.
Calvin was born in May 2008. The Division received a referral upon his
birth. The mother has eight other biological children with several different
fathers. The father also has other biological children. Id. at 215. The Division
had received several reports of abuse and neglect about the mother's children
prior to Calvin's birth. Ibid.
1 We use initials and pseudonyms to protect the privacy of the minor. R. 1:38- 3(d)(12). A-4778-17T2 3 In July 2009, the father was granted temporary residential custody of
Calvin, with the mother's consent. The father resided with his paramour T.C.,
T.C.'s two daughters, and T.C.'s son. Id. at 216.
In June 2012, the father was ordered to stay out of T.C.'s home, at which
time the court was apparently unaware that Calvin was also then residing there.
Id. at 217. Later that month, the Division received a referral from an East
Orange police officer who had responded to a call concerning T.C.'s home
because the mother had gone there to take physical custody of Calvin. The
officer had taken T.C. and Calvin to the police station because the mother was
demanding physical custody and the father's whereabouts were then unknown.
Id. at 217.
On June 22, 2012, the Division conducted a Dodd 2 removal of Calvin from
T.C.'s residence. Id. at 218. The trial court awarded the Division custody of
Calvin four days later. Ibid.
In August 2012, Calvin was evaluated at the Metro Regional Diagnostic
and Treatment Center ("RDTC") at Children's Hospital of New Jersey. The
RDTC reported that the child was "developmentally delayed in communication
2 A "Dodd removal" refers to the emergency removal of a child without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011). A-4778-17T2 4 skills, fine motor skills, problem solving skills, and personal social skills." Ibid.
According to the RDTC report, Calvin had been displaying "significant
emotional and behavioral problems including temper tantrums, defiance, and
oppositionality." Ibid.
In September 2012, another evaluation of Calvin was performed at the
RDTC. Ibid. This evaluation concluded Calvin exhibited "[s]low growth –
possible failure to thrive." Ibid. The RDTC recommended, among other things,
that Calvin continue to see a nutritionist, that his father participate in those
appointments, and that his father receive training on parenting disciplinary
methods as well as skills training to improve Calvin's eating behaviors and food
intake. Ibid.
The Family Part ordered weekly visitation between the father and Calvin
in June 2012. The Division accordingly referred the father to a program that
included components for therapeutic supervised visitation, a parenting group,
and skills training. The father began such weekly visitation in August 2012.
As of late October 2012, the father was compliant with his visitation with
Calvin. However, after that point, the father became inconsistent with his
visitation, and missed numerous scheduled visits. The record reflects the
A-4778-17T2 5 father's last visitation with Calvin was in 2014. Given this failure, the father's
visitation rights to Calvin were eventually suspended on October 19, 2015.
The father was referred to more parenting skills group sessions after the
filing of the Division's guardianship complaint in December 2013, but he failed
to attend. The father was again referred to parenting skills classes at another
location. He attended the intake session in March 2014, but failed to attend any
further sessions and was discharged from that program five weeks later.
During the course of the guardianship litigation, the Division repeatedly
scheduled the father for psychological evaluations by Elizabeth M. Smith,
Psy.D., approximately five times. The father missed all of these appointments.
The Trial Proofs
The Division presented four witnesses at the trial: Dr. Smith, who is an
expert in the fields of psychology and bonding; Emerald Irby, Calvin's
caseworker and custodian of the records; Ines Perez-Nin, a Division supervisor
who testified about hearsay statements by T.C.'s children alleging that the father
had sexually abused them; and Barry A. Katz, Ph.D., an expert in the fields of
psychology, psychosexual evaluations, sexual risk assessment and parenting. 3
3 Because we determined in our published opinion that the hearsay statements were inadmissible, we do not expound upon or consider those allegations here.
A-4778-17T2 6 The father presented testimony from Laural Montgomery, Calvin's therapist at
Children's Specialized Hospital. The father did not testify and no other
witnesses testified on his behalf.
Dr. Smith performed bonding evaluations between Calvin and his resource
parent as well as between Calvin and the mother. Dr. Smith did not perform a
bonding evaluation with the father because he missed several scheduled
appointments.
Dr. Smith testified that Calvin was "basically confused" and "doesn't
know where he belongs." Calvin repeatedly stated to her that he did not have a
father anymore. According to Dr. Smith, Calvin "wants to belong somewhere"
and was "devastated by not being part of [his] family." Dr. Smith testified that
Calvin "needs to have a stable, safe home."
Caseworker Irby testified about the father's compliance record with
services and visitation. She also noted that the father did not have appropriate
housing because he lived with T.C., who was a substantiated perpetrator and did
not have custody of her own children.
Nor is there a need in this opinion to discuss the trial testimony of Dr. Katz or Perez-Nin, which concerned those hearsay allegations of sexual abuse. A-4778-17T2 7 In June 2015, after the testimony of Dr. Smith, Dr. Katz, Perez-Nin, and
partial testimony by Irby was presented, the Division reported that Calvin had
been removed from his resource home, where he had been living for around
three years, due to concerns about abuse. After investigation, the Division
determined that Calvin's resource mother had used excessive corporal
punishment on Calvin. Calvin was accordingly placed in a different resource
home.
Irby resumed her testimony in January 2016. She recounted that Calvin
was living in the second of two successive resource homes since the removal
due to abuse. He had been living with that most recent resource family since
August 2015, where he had "shown great improvement, both at school and in
the resource home." She noted that Calvin was receiving behavioral health
services.
Irby described the Division's plans for what is known as "select home
adoption," the process for seeking adoptive homes, and the likelihood of finding
Calvin a placement. She indicated that, at that time, there were eight potential
homes for Calvin, and four additional homes if he were made legally free
through the termination of parental rights. She explained that the pool for
adoption generally becomes larger after such termination. She predicted the
A-4778-17T2 8 Division could locate an adoptive home for Calvin if he became legally free.
According to Irby, none of Calvin's needs presented a significant problem with
finding a home, especially with Calvin's more recent behavioral improvements.
In the defense's case, Calvin's therapist, Montgomery, testified that
Calvin's treatment goals were to improve his compliance with directions from
caregivers, teachers, and herself, as well as to improve his mood regulation and
social interaction. Regarding a prior recommendation she made that the father
not be allowed visitation with Calvin, Montgomery testified Calvin had been "in
the midst of an acute disruption from one placement to another," and had become
"highly dysregulated." This disruption manifested by Calvin banging his head
against a wall and other behaviors requiring a session to end early and assistance
to get Calvin safely to a car. Montgomery stated her concerns about Calvin's
well-being if visitations with the father were resumed had been based on Calvin's
instability at the time, the disruption in Calvin's placement, the father's history
of inconsistent visitation, and the ongoing termination proceedings that raised
the specter that Calvin would not see his father again.
The trial judge issued an initial decision on February 10, 2016, terminating
both the father's and mother's parental rights to Calvin. In her decision, the
judge stated, among other things, that she could "not ignore" the hearsay
A-4778-17T2 9 allegations by T.C.'s daughters that they have been sexually abused by Calvin's
father. T.U.B., 450 N.J. Super. at 244. The father appealed the court's decision,
but the mother did not.
The Remand
In our published opinion, we remanded this case on prongs one, two, and
four of the statutory factors because the first judgment terminating parental
rights had relied on inadmissible hearsay evidence of sexual abuse by the father
of T.C.'s daughters. Id. at 214. We gave the judge express instructions to
"determine whether, if the hearsay allegations of sexual abuse are disregarded,
she would still conclude that the Division met its burden of proving statutory
prongs one, two, and four by clear and convincing evidence." Id. at 245. In
doing so, we afforded the judge "the discretion to permit updated or other
additional relevant proofs from the parties, including updated expert opinions.
Such discretion, however, shall be exercised subject to the condition that the
Division may not attempt to re-prove the truth of the girls' hearsay allegations
by other means." Id. at 246. However, we did affirm the trial court's "discrete
findings with respect to prong three concerning the provision of services and the
absence of other suitable relatives to serve as caretakers." Id. at 214.
A-4778-17T2 10 On remand, the trial judge initially inquired of the parties as to their
positions concerning any need for updated or other additional relevant proofs.
The Division maintained that the record from the original trial was sufficient to
terminate the father's parental rights, but the father sought to introduce a defense
psychological evaluation that was conducted post-remand. The father also
requested renewed visitation with Calvin, a request that the Division and Law
Guardian opposed and the trial judge denied.
The judge requested the Division contact Dr. Katz to obtain an updated
expert opinion that did not consider the inadmissible hearsay evidence. The
Division reported back to the judge that Dr. Katz would need to conduct an
updated full evaluation of the father to render such an opinion. Consequently,
the judge ordered the father to attend such an evaluation. The judge emphasized
to the father, who was attending the conference by phone, the importance of him
appearing for this evaluation. The judge specifically informed the father that
the court would not accept the father's recent psychological evaluation if the
judge was not also able to consider an evaluation from the Division.
Despite these admonitions, the father failed to attend the post-remand
evaluation scheduled with Dr. Katz. Accordingly, the trial judge barred the
A-4778-17T2 11 admission of the new evaluation by the father's expert, and proceeded to decide
the remand without any further evidence.
The Present Appeal
This appeal by the father from the remand ensued. He argues that because
of the Division's failure to supplement the record on remand, there is not
adequate substantial and credible evidence to support the trial court's post-
remand decision as to prongs two and four. 4
II.
It is well settled that the termination of a parent's rights to raise his or her
children raises issues of a constitutional dimension. See, e.g., In re
Guardianship of K.H.O., 161 N.J. 337, 346 (1999); In re Guardianship of J.C.,
129 N.J. 1, 9-10 (1992). The Legislature has recognized the importance of this
constitutionally protected relationship between a parent and a child by imposing
a high burden upon the Division to terminate those rights in a guardianship case.
That burden calls for the Division to prove, by clear and convincing evidence,
the following four prongs under N.J.S.A. 30:4C-15.1(a):
4 The father does not dispute the court's findings as to prong one. As we have already noted, the finding on prong three was conclusively upheld in our earlier opinion. A-4778-17T2 12 (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;
(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 N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]
In considering the father's arguments on appeal, we must be cognizant that
our scope of appellate review is limited. N.J. Div. of Youth & Family Servs. v.
G.L., 191 N.J. 596, 605 (2007). "Appellate courts must defer to a trial judge's
findings of fact if supported by adequate, substantial, and credible evidence in
the record." Ibid. An appellate court must also defer to the trial court's
credibility determinations, and to the Family Part's special expertise in the field
A-4778-17T2 13 of domestic relations. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J.
527, 552-53 (2014). That said, the trial court's interpretation of the law and
legal findings are reviewed pursuant to a de novo standard. Id. at 552.
Having applied these well-settled principles, we affirm the trial court's
rulings on remand and the corresponding renewed final judgment of
guardianship. We do so substantially for the sound reasons articulated by the
trial judge. We add a few amplifying comments.
There is substantial credible evidence in the record to support the trial
court's findings under the disputed prongs two and four and the resultant
termination of the father's parental rights. As the trial court detailed, there is
abundant proof that the father is unlikely to eliminate the harm to Calvin. His
poor track record as a parent offers little reason to believe he will provide a
secure and safe home for Calvin.
The trial court was entitled to accept the Division's expert's testimony as
persuasive. City of Long Branch v. Liu, 203 N.J. 464, 491 (2010) (explaining
the fact finder has the role of assessing the credibility and weight to be given to
expert testimony); Angel v. Rand Express Lines Inc., 66 N.J. Super. 77, 85-86
(App. Div. 1961) (same). Moreover, a child's interests in permanency must
override a parent's desire to prolong the process towards a doubtful
A-4778-17T2 14 reunification. N.J. Div. of Child Prot. & Permanency v. R.L.M., 236 N.J. 123,
146-47 (2018) (emphasizing the importance of prompt judicial determinations
of issues in cases involving children awaiting permanency); N.J. Div. of Youth
& Family Servs. v. S.F., 392 N.J. Super. 201, 209-10 (App. Div. 2007) (same).
We are unpersuaded by the father's claim that the absence of updated
information adduced on remand signifies there is not enough evidence in the
record to support the trial court's decision. The remand in this case was for the
discrete purpose of allowing the trial judge to "determine whether, if the hearsay
allegations of sexual abuse are disregarded, she would still conclude that the
Division met its burden of proving statutory prongs one, two, and four by clear
and convincing evidence." T.U.B., 450 N.J. Super. at 245. As our published
opinion clearly stated, the trial court possessed "the discretion to permit updated
or other additional proofs from the parties." Id. at 246. The court did not
misapply that discretion on remand, particularly given the circumstances
presented here.
There is ample evidence to support the trial court's finding that the father
"is unwilling or unable to eliminate the harm" facing the child. Prior to the entry
of the initial final judgment, the father had failed to complete recommended
services and he frequently did not attend scheduled visitations, particularly as
A-4778-17T2 15 time passed. The father's continuation of his pattern of non-compliance on
remand, illustrated by failing to attend his scheduled examination with Dr. Katz,
despite the court's clear admonitions, further supports the court's decision. In
addition, although the record does not include any updated information about
the father's living situation at the time of the remand, the father had a history of
failing to provide adequate housing.
We further uphold the trial court's decision not to renew the father's
visitation with Calvin, given the length of time that had passed since the last
visitation, the limited scope of the remand, and the opposition of the Division
and the Law Guardian to such visits.
Additionally, we reject the father's argument that the Division was
required to provide him with services during the remand period. The remand
was prompted by a specific and narrow evidential issue concerning hearsay
allegations by T.C.'s children that did not affect the question of reasonable
services. Moreover, in the first appeal we specifically affirmed "the court's
discrete findings with respect to . . . the provision of services and the absence of
other suitable relatives to serve as caretakers." T.U.B., 450 N.J. Super. at 214.
Lastly, as to prong four of the best interests test, there is sufficient credible
evidence to support the trial court's finding that termination of the father's
A-4778-17T2 16 parental rights will not do Calvin more harm than good. Although Calvin
remains in select home adoption status, the caseworker's testimony at the
guardianship trial indicated that the Division would have more resources
available to find an adoptive home for Calvin after the termination of parental
rights. Moreover, Calvin's Law Guardian during the remand proceedings
repeatedly – and rightly – noted the importance of achieving permanency for
Calvin. See R.L.M., 236 N.J. at 146-47.
The trial court reasonably concluded that the termination of the father's
parental rights should be beneficial to Calvin, given the father's history of non-
compliance, Dr. Smith's expert testimony, and the prospect that termination will
allow the Division to make full use of its resources to find an adoptive home for
Calvin. Prong four was therefore met.
In sum, we discern no basis to set aside the trial court's well-supported
and well-reasoned decision to terminate the father's parental rights.
Affirmed.
A-4778-17T2 17