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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3437-17T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
T.W., J.K., JR., and D.H.,
Defendants-Respondents. _____________________________
IN THE MATTER OF THE GUARDIANSHIP OF J.W., T.G., and D.H.,
Minors-Appellants. _____________________________
Argued August 5, 2019 – Decided August 16, 2019
Before Judges Sabatino, Rose and Mitterhoff.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-0033-17. Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for appellants (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Olivia Belfatto Crisp, on the briefs).
Ted G. Mitchell, Deputy Public Defender, argued the cause for respondent T.W. (Joseph E. Krakora, Public Defender, attorney; Ted G. Mitchell, on the brief).
Mary Kathleen Potter, Designated Counsel, argued the cause for respondent J.K., Jr. (Joseph E. Krakora, Public Defender, attorney; Mary Kathleen Potter, on the brief).
John Andrew Albright, Designated Counsel, argued the cause for respondent D.H. (Joseph E. Krakora, Public Defender, attorney; Robyn A. Veasey, Deputy Public Defender, of counsel; John Andrew Albright, on the brief).
Christian Arthur Arnold, Assistant Attorney General, argued the cause for respondent Division of Child Protection and Permanency (Gurbir S. Grewal, Attorney General, attorney; Jason Wade Rockwell, Assistant Attorney General, of counsel; Christian Arthur Arnold, on the brief).
PER CURIAM
In this Title 30 action, the Law Guardian for three minor children appeals
the Family Part's March 14, 2018 order denying termination of the parental
rights of the children's mother and their respective fathers. The order followed
a two-day trial at which the Division of Child Protection and Permanency ("the
Division") presented testimony from two witnesses, both of whom the trial judge
A-3437-17T3 2 found in various respects to lack credibility. Defendant parents and the Law
Guardian proffered no witnesses. Based on the proofs the Division chose to
present at trial, the judge concluded the four prongs of N.J.S.A. 30:14C-15.1(a),
which are required for termination, had not been proven by the necessary level
of clear and convincing evidence.
On appeal, the Law Guardian argues the trial court misconstrued the
record and misapplied the law in several respects. She urges that we reverse the
final judgment and permanently sever these parents from their children.
Although it did not file a notice of appeal, the Division joins in the Law
Guardian's position.
Applying the heightened deference owed to the trial court in cases of
termination denials, we affirm that court's decision.
I.
We need not set forth here comprehensively the facts and procedural
history, as we presume the parties' familiarity with those details. The following
brief summary will suffice.
A-3437-17T3 3 The Parties and The Subject Children
The defendant mother, T.W., was born in June 1992. 1 Each of her four
children has a different father. The oldest child, A.G., was born in September
2008. A.G. and her father ceased to be involved in this case before the trial, and
they are not the subject of the final judgment or this appeal. Hence, the case
concerns only the three other children.
The next oldest child, T.G., was born in December 2009. While the
parental rights of T.W. as the mother of T.G. are part of this case and this appeal,
those of T.G.'s father, K.M., are not. That is because K.M. voluntarily
surrendered his rights before trial to J.M., who is K.M.'s mother and T.G.'s
paternal grandmother. J.M. had already been serving as T.G.'s caregiver and
intended to adopt him.
T.W.'s third child, J.W., was born in October 2013. J.W.'s father is J.K.,
a co-defendant at trial and a co-respondent on appeal.
1 We use initials to protect the privacy of the children and the confidentiality of the Division's records. R. 1:38-3(d)(12). For clarity, we at times refer to T.W. as "the mother."
A-3437-17T3 4 The youngest child, D.W., 2 was born in February 2016. His father, D.H.,
was likewise a co-defendant at trial and is a co-respondent in this appeal.
The Division's Initial Involvement with the Family
The Division first became involved with the children in February 2013,
when it removed A.G. and T.G. from the care of T.W., who was then living in
the home of her own mother. The residence at the time lacked heat and hot
water, although the children appeared healthy and appropriately dressed for the
season. T.W. tested positive for marijuana, and admitted to using marijuana
twice a day, three to four times per week. She was ordered to and received
intensive outpatient treatment.
In the meantime, A.G. and T.G. were removed and placed in resource
homes, where the mother had frequent visitation with them. The mother
continued to receive treatment, although at times she generated positive urine
screens for marijuana. The mother also submitted to several mental health
evaluations. Among other things, the evaluations revealed that she suffered
from depression and other mental health and cognitive issues. She was
recommended for antidepressant medication.
2 At times the record also refers to this youngest child using the surname "H." To avoid confusion, we will refer to him as "D.W." rather than "D.H.," to distinguish him from his father. A-3437-17T3 5 J.W.'s Birth in October 2013
In October 2013, the mother gave birth to J.W., her third child. The
Division was given care and supervision of J.W., but T.W. retained legal and
physical custody. J.W.'s father, J.K., was incarcerated at the time but expected
to be released soon. The mother continued to have supervised visitation with
her two older children, which went favorably. She attended a full -time school
program on her own accord and obtained a GED degree.
Reunification of the Children with T.W. in May 2014
In May 2014, A.G. and T.G. were reunited with T.W., who was then living
with her own mother. The family pursued emergency housing assistance, and
T.W.'s progress with services was considered satisfactory at that time.
The January 2015 Emergency Removal and other Developments
In January 2015, T.W. tested positive for marijuana. T.W. was then
referred for services, but failed to appear. A month later, in February 2015, the
Division conducted an emergency removal of all three children, citing T.W.'s
noncompliance with court-ordered services, and her marijuana relapse.
In March 2015, T.W. attended an intensive program focused on relapse
prevention and anger management, although she discontinued that program a
A-3437-17T3 6 month later due to funding problems. Meanwhile, T.W. continued to visit with
the children.
In August 2015, the Division moved T.G., the second child, from his
resource home to the residence of his paternal grandmother. By mid-September
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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-3437-17T3
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
T.W., J.K., JR., and D.H.,
Defendants-Respondents. _____________________________
IN THE MATTER OF THE GUARDIANSHIP OF J.W., T.G., and D.H.,
Minors-Appellants. _____________________________
Argued August 5, 2019 – Decided August 16, 2019
Before Judges Sabatino, Rose and Mitterhoff.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-0033-17. Olivia Belfatto Crisp, Assistant Deputy Public Defender, argued the cause for appellants (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Olivia Belfatto Crisp, on the briefs).
Ted G. Mitchell, Deputy Public Defender, argued the cause for respondent T.W. (Joseph E. Krakora, Public Defender, attorney; Ted G. Mitchell, on the brief).
Mary Kathleen Potter, Designated Counsel, argued the cause for respondent J.K., Jr. (Joseph E. Krakora, Public Defender, attorney; Mary Kathleen Potter, on the brief).
John Andrew Albright, Designated Counsel, argued the cause for respondent D.H. (Joseph E. Krakora, Public Defender, attorney; Robyn A. Veasey, Deputy Public Defender, of counsel; John Andrew Albright, on the brief).
Christian Arthur Arnold, Assistant Attorney General, argued the cause for respondent Division of Child Protection and Permanency (Gurbir S. Grewal, Attorney General, attorney; Jason Wade Rockwell, Assistant Attorney General, of counsel; Christian Arthur Arnold, on the brief).
PER CURIAM
In this Title 30 action, the Law Guardian for three minor children appeals
the Family Part's March 14, 2018 order denying termination of the parental
rights of the children's mother and their respective fathers. The order followed
a two-day trial at which the Division of Child Protection and Permanency ("the
Division") presented testimony from two witnesses, both of whom the trial judge
A-3437-17T3 2 found in various respects to lack credibility. Defendant parents and the Law
Guardian proffered no witnesses. Based on the proofs the Division chose to
present at trial, the judge concluded the four prongs of N.J.S.A. 30:14C-15.1(a),
which are required for termination, had not been proven by the necessary level
of clear and convincing evidence.
On appeal, the Law Guardian argues the trial court misconstrued the
record and misapplied the law in several respects. She urges that we reverse the
final judgment and permanently sever these parents from their children.
Although it did not file a notice of appeal, the Division joins in the Law
Guardian's position.
Applying the heightened deference owed to the trial court in cases of
termination denials, we affirm that court's decision.
I.
We need not set forth here comprehensively the facts and procedural
history, as we presume the parties' familiarity with those details. The following
brief summary will suffice.
A-3437-17T3 3 The Parties and The Subject Children
The defendant mother, T.W., was born in June 1992. 1 Each of her four
children has a different father. The oldest child, A.G., was born in September
2008. A.G. and her father ceased to be involved in this case before the trial, and
they are not the subject of the final judgment or this appeal. Hence, the case
concerns only the three other children.
The next oldest child, T.G., was born in December 2009. While the
parental rights of T.W. as the mother of T.G. are part of this case and this appeal,
those of T.G.'s father, K.M., are not. That is because K.M. voluntarily
surrendered his rights before trial to J.M., who is K.M.'s mother and T.G.'s
paternal grandmother. J.M. had already been serving as T.G.'s caregiver and
intended to adopt him.
T.W.'s third child, J.W., was born in October 2013. J.W.'s father is J.K.,
a co-defendant at trial and a co-respondent on appeal.
1 We use initials to protect the privacy of the children and the confidentiality of the Division's records. R. 1:38-3(d)(12). For clarity, we at times refer to T.W. as "the mother."
A-3437-17T3 4 The youngest child, D.W., 2 was born in February 2016. His father, D.H.,
was likewise a co-defendant at trial and is a co-respondent in this appeal.
The Division's Initial Involvement with the Family
The Division first became involved with the children in February 2013,
when it removed A.G. and T.G. from the care of T.W., who was then living in
the home of her own mother. The residence at the time lacked heat and hot
water, although the children appeared healthy and appropriately dressed for the
season. T.W. tested positive for marijuana, and admitted to using marijuana
twice a day, three to four times per week. She was ordered to and received
intensive outpatient treatment.
In the meantime, A.G. and T.G. were removed and placed in resource
homes, where the mother had frequent visitation with them. The mother
continued to receive treatment, although at times she generated positive urine
screens for marijuana. The mother also submitted to several mental health
evaluations. Among other things, the evaluations revealed that she suffered
from depression and other mental health and cognitive issues. She was
recommended for antidepressant medication.
2 At times the record also refers to this youngest child using the surname "H." To avoid confusion, we will refer to him as "D.W." rather than "D.H.," to distinguish him from his father. A-3437-17T3 5 J.W.'s Birth in October 2013
In October 2013, the mother gave birth to J.W., her third child. The
Division was given care and supervision of J.W., but T.W. retained legal and
physical custody. J.W.'s father, J.K., was incarcerated at the time but expected
to be released soon. The mother continued to have supervised visitation with
her two older children, which went favorably. She attended a full -time school
program on her own accord and obtained a GED degree.
Reunification of the Children with T.W. in May 2014
In May 2014, A.G. and T.G. were reunited with T.W., who was then living
with her own mother. The family pursued emergency housing assistance, and
T.W.'s progress with services was considered satisfactory at that time.
The January 2015 Emergency Removal and other Developments
In January 2015, T.W. tested positive for marijuana. T.W. was then
referred for services, but failed to appear. A month later, in February 2015, the
Division conducted an emergency removal of all three children, citing T.W.'s
noncompliance with court-ordered services, and her marijuana relapse.
In March 2015, T.W. attended an intensive program focused on relapse
prevention and anger management, although she discontinued that program a
A-3437-17T3 6 month later due to funding problems. Meanwhile, T.W. continued to visit with
the children.
In August 2015, the Division moved T.G., the second child, from his
resource home to the residence of his paternal grandmother. By mid-September
2015, the mother was living with D.H., and was attending school and working.
D.W.'s Birth in February 2016 and Additional Events
After D.W. was born in February 2016, the Division removed him from
the hospital on an emergency basis. Several days later, the trial court found no
grounds for the removal and returned D.W. to the care of T.W. and D.H., who
were then living with T.W.'s mother. A caseworker visited the house and found
no safety issues and that T.W. and D.H. appeared to be bonded to their child and
had a good relationship with one another.
An expert psychologist retained by the Division conducted a bonding
evaluation between the mother and J.W. and T.G. in June 2016. The expert
opined that T.W. was affectionate and supportive when interacting with T.G.
and J.W., who both identified her as their mother. The expert concluded that
T.G. and J.W. were attached to their mother, and would suffer harm if
permanently removed from T.W. He consequently did not recommend
termination at that time.
A-3437-17T3 7 T.W. received ongoing treatment and counseling, but also continued to
test positive at times for marijuana use. She maintained a fairly steady record
of visitations with T.G. and J.W.
In December 2016, the Division removed D.W. from T.W. and D.H.,
mainly due to T.W.'s continued marijuana usage and D.H.'s failure to comply
with substance abuse testing. D.W. was placed with the resource parent who
was already caring for J.W.
Thereafter, T.W. continued to visit the three youngest children, and she
also continued her attempts with various services.
II.
The Division's Guardianship Complaint and Further Developments
The Division filed a complaint for guardianship of T.G. and J.W. seeking
to terminate the rights of their parents in January 2017. The Division amended
its complaint in August 2017 to include D.W. and to add his father D.H. as a co -
defendant.
In the fall of 2017, an evaluation revealed that T.W. and D.H. had been
staying with T.W.'s godmother temporarily in Pittsburgh. More evaluations
ensued. Among other things, a psychiatrist retained by the Division
recommended that T.W. be prescribed a mood stabilizer to prevent
A-3437-17T3 8 antidepressants from worsening her symptoms, but apparently the mood
stabilizer was not provided to her.
The Two-Day Trial
The guardianship trial was conducted over two separate days in February
2018. The Division presented only two witnesses: (1) a caseworker who had
been intermittently assigned to this family from October 2015 through June
2016, and again from August 2017 through February 2018; and (2) a
psychologist who first evaluated the parents and the children in the fall of 2017.
The Division also presented various records, including the admission, over J.K.'s
objection, of reports of another expert retained by the Division. As we have
already noted, the Law Guardian and the defendant parents did not present any
witnesses.
The Trial Judge's Opinion
After sifting through the proofs, the trial judge issued a detailed thirty-
page written opinion on March 14, 2018. The judge found that the Division
failed to prove by clear and convincing evidence the necessary prongs of the
statutory test for terminating parental rights.
Regarding T.W., the judge found that the Division proved prong one as to
T.G., but not as to J.W. and D.W., and failed to prove prongs two, three, and
A-3437-17T3 9 four with respect to T.G., J.W., and D.W. Regarding J.K., the judge found the
Division did not prove prong three, although it did prove as to him prongs one,
two, and four. Lastly, regarding D.H., the court determined that the Division
did not prove any of the four prongs.
In her written opinion, the trial judge determined that the testimony of
both of the Division witnesses was not credible in several critical respects.
Among other things, the judge identified several deficiencies in the testifying
psychologist's methodology, observing that he dissembled on the witness stand
and that he had failed to review certain visitation records and other relevant
materials. The judge also found the caseworker's testimony unconvincing,
noting, among other things, that she had trouble recalling certain important
details.
The trial judge also expressed serious concerns about lengthy gaps in the
Division's records for various time periods. Those periods included: June 2014
to January 2015; December 2015 to February 2016; and December 2016 to
March 2017.
In the course of her analysis, the judge particularly criticized the
mismanagement of the mother's mental health treatment. As the judge found:
Most troublingly, however, is that in May 2017, [the Division's expert psychiatrist] diagnosed [T.W.] with
A-3437-17T3 10 bipolar disorder and indicated that [T.W.] should be placed on both a mood-stabilizer and an anti-depressant and that an anti-depressant alone would worsen her symptoms of bipolar disorder. [The expert] recommended substance-abuse treatment and counseling services. Despite this clear recommendation, the Division made no effort to schedule her for psychiatric services and no effort to provide her with counseling. In fact, after referring [T.W.] for substance-abuse services in August [2017], the Division made no substantive contact with her until October 2017. Essentially the Division made no effort to assist [T.W.] with her mental illness, and in fact, had provided services – anti-depressants – earlier in the case that may have had an adverse impact on her mental health.
The Law Guardian's Appeal
After the trial court issued its final judgment denying termination, the Law
Guardian filed the present appeal. Notably, the Division did not file an appeal
but as a respondent did endorse the Law Guardian's request for reversal. We
were advised at oral argument that, in the interim, the Division has filed another
guardianship complaint in the Family Part, and that a trial in that new case is
presently expected to begin in October 2019.
The Law Guardian maintains that the evidential record was sufficient to
establish the four criteria for termination as to the mother and all three respective
fathers. The Law Guardian contends that the trial court had a skewed impression
of the witnesses and overlooked key contents of the documentary exhibits that
A-3437-17T3 11 were unfavorable to the parents. The Law Guardian also argues the children are
being unnecessarily delayed by the judge's decision in achieving a permanent
outcome. The Division generally concurs in those arguments, although it
maintains it is nonetheless prepared to prove its contentions at the upcoming
trial.
III.
As the Law Guardian and the Division acknowledge, our case law
prescribes an especially deferential scope of review in appeals taken from the
Family Part's denial of the termination of parental rights. Our Supreme Court
has repeatedly instructed, "[a]ppellate review of a trial court's decision to
terminate parental rights is limited, and the trial court's factual findings 'should
not be disturbed unless they are so wholly unsupportable as to result in a denial
of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citations
omitted). We "must defer to a trial judge's findings of fact if supported by
adequate, substantial, and credible evidence in the record." N.J. Div. of Youth
& Family Servs. v. G.L., 191 N.J. 596, 605 (2007). We do so because the Family
Part has "the superior ability to gauge the credibility of the witnesses who testify
before it and because it possesses special expertise in matters related to the
family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012).
A-3437-17T3 12 Most importantly for the present appeal, even "greater deference is owed
to a denial of an application to terminate parental rights than to a grant of an
application because a termination of parental rights is final and canno t be re-
visited by the court." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527,
553 (2014).
Applying these well-settled principles of "greater deference," we affirm
the Family Part's decision, substantially for the reasons detailed in the trial
judge's lengthy opinion. The judge reasonably concluded the Division had not
met its heavy burden to prove the necessary prongs for termination by clear and
convincing evidence.
With respect to the Division's testifying expert in particular, the judge
cited several cogent reasons why that particular expert was unpersuasive. We
shall not second-guess that assessment. It is well-settled that a fact-finder is
"free to accept or reject in whole or in part the testimony of" any expert.
Southbridge Park, Inc. v. Borough of Fort Lee, 201 N.J. Super. 91, 94 (App.
Div. 1985). See also City of Long Branch v. Liu, 203 N.J. 464, 491-92 (2010).
The fact-finder may do so "even if that testimony is unrebutted by any other
[expert] evidence." State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004).
A-3437-17T3 13 The judge made it very clear why she did not find the Division's testifying
expert credible on key points. Similarly, we will not set aside the judge's adverse
credibility findings concerning the testifying caseworker, which likewise were
well explained.
The Law Guardian argues that, regardless of the trial court's negative
impressions of the testifying witnesses, the hearsay statements contained in the
documentary exhibits were sufficient to prove the Division's case. We reject
that argument. A judge presumably appreciates the nature of hearsay and will
give it the weight, if any, it deserves. See N.J. Div. of Child Prot. & Permanency
v. J.D., 447 N.J. Super. 337, 348-49 (App. Div. 2016) (observing that, "[w]hen
objectionable hearsay is admitted . . . without objection, we presume that the
fact-finder appreciates the potential weakness of such proofs, and takes that into
account in weighing the evidence."). The hearsay statements in the documents
do not compel reversal of the judge's overall fact-finding.
Having examined the trial transcripts and the documentary exhibits, we
are unpersuaded the trial judge's decision lacks evidential support or that it is
legally erroneous. The judge duly recognized the mother's problematic ongoing
usage of marijuana and her imperfect compliance with services. But, on the flip
side, the judge also recognized the mother's substantial efforts in visiting
A-3437-17T3 14 frequently with the children, maintaining her relationship with them, and in
advancing her own skills and education, including attaining a GED degree.
Given those offsetting considerations, the judge reasonably rejected the
Division's request to terminate her rights.
We also share the trial judge's concerns about the large time gaps in the
Division's records, and also the Division's apparent failure to adequately manage
the mother's mental health treatment.
Lastly, the trial judge articulated reasonable justifications for not
terminating the parental rights of the fathers, given the short comings of the
present record.
We therefore affirm the trial court's decision. We do so, of course, without
prejudice to whatever evidence that may emerge at the forthcoming new trial,
including events and developments that post-date the February 2018 trial. 3
Affirmed.
3 In light of our affirmance, we need not address the policy arguments presented by defendants concerning the Division's approach with respect to parents such as T.W. with cognitive limitations, and other issues. We do so without precluding defendants from raising those policy concerns at the new trial, in this case, or in some other case, with appropriate expert or other evidential support. A-3437-17T3 15