DCPP VS. R.K.W. AND S.L.W., IN THE MATTER OF THE GUARDIANSHIP OF M.E.W. (FG-08-0052-17, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

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NOT FOR PUBLICATION WITHOUT THE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-4837-17T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
R.K.W.,
Defendant-Appellant,
and
S.L.W.,
Defendant.
____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF M.E.W.,
a Minor.
____________________________
Submitted September 10, 2019 – Decided October 2, 2019
Before Judges Messano, Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FG-08-0052-17.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Catherine F. Reid, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Salima E. Burke, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Todd S. Wilson, Designated
Counsel, on the brief).
PER CURIAM
Defendant R.K.W. is the father of nine children; six of whom were born
to defendant and his wife, S.L.W. (Sophia), during their marriage.1 The couple's
two youngest children, M.E.W. (Martin) and N.A.W. (Norbert), were born in
March 2007 and February 2006, respectively. We set forth the family's
involvement with the Division of Child Protection and Permanency (the
Division) in our prior opinion, N.J. Div. of Child Protection & Permanency v.
S.W., 448 N.J. Super. 180, 183–87 (App. Div. 2017), in which we reversed the
1
We use initials and fictitious names to protect the privacy of the parties. We
adopt the same fictitious names we used in our prior opinion.
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2
Family Part's November 2013 order finding that defendant had "abused or
neglected his children[.]" Id. at 194.
While the appeal was pending, defendant and Sophia separated and
remained living apart. Id. at 184. The children, who had temporarily been
returned to Sophia's custody after their initial removal, were returned to the
Division's custody in August 2013, after Sophia became homeless. Id. at 187.
The children were placed in a resource home at that time. Ibid. The Division,
which had initiated termination proceedings, eventually dismissed the pending
guardianship complaint and resumed efforts to reunify defendant and the
children, as recommended by the Division's expert, James Loving, Psy.D. The
Division provided services to the family.
However, during 2016, defendant's participation in services became
sporadic, and he continued to lack adequate housing permitting reunification
with his sons. In October, defendant suffered a near-fatal heroin overdose en
route to a supervised visitation session and was taken by ambulance to the
hospital for treatment. Defendant entered an inpatient treatment program, and
his housing remained unsuitable for reunification with the children. In January
2017, the court approved a permanency plan for termination of defendant's and
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3
Sophia's parental rights, and the Division filed a second guardianship
complaint.2
The trial took place over non-successive days during February, April and
May 2018 before the same judge who entered the original Title Nine fact-finding
order we reversed in our prior opinion.3 The judge excluded from evidence all
Division records prior to August 15, 2013, the date of the second removal of the
children, and the Division's caseworker, Michelle Pisarek, and Dr. Loving
testified on the Division's behalf. Defendant and his paramour, O.L. (Olivia),
also testified.
In her oral opinion placed on the record three weeks after the conclusion
of testimony, the judge provided an "outline" of her decision because she was in
the midst of another trial, recognizing it did not include "all the detail" she
needed. She further announced she would "do an appendix, as well[.]"
The judge began by stating she had "pored over the caseworker notes,"
citing an exhibit she had ruled inadmissible before trial. She then found the
Division had proven by clear and convincing evidence the first three prongs of
2
On May 2, 2017, the court entered an order declaring Sophia, who had never
appeared after the filing of the second guardianship complaint, in default.
Sophia never participated in the proceedings thereafter.
3
Defendant did not object to the judge sitting on the guardianship trial.
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4
the statutory best-interests-of-the-child test, N.J.S.A. 30:4C-15.1(a), as to both
Martin and Norbert. As to the fourth prong, whether "[t]ermination of parental
rights will not do more harm than good[,]" N.J.S.A. 30:4C-15.1(a)(4), for
reasons more fully explained below, the judge found the Division met its burden
as to Martin, but not as to Norbert. The judge entered two orders, one
terminating defendant's and Sophia's parental rights to Martin, and a second,
dismissing the guardianship complaint as to Norbert and re-opening the
litigation on the FN docket. 4
Approximately five months later, after defendant filed his notice of
appeal, the judge issued an unsigned six-page "[a]ppendix." It contains slightly
more than a single paragraph summarizing the judge's findings as to prongs one
and two, and a chronological series of events documenting the judge's "[p]rong
three findings." 5
Before us, defendant contends we should reverse the order terminating his
parental rights to Martin because the Division failed to satisfy by clear and
convincing evidence the second, third and fourth prongs of the statutory test.
4
The Division and Norbert have not appealed from this order. Sophia has not
appealed the termination of her parental rights to Martin.
5
The judge later issued a signed copy of the appendix.
A-4837-17T2
5
He also argues the judge considered documents that were never admitted into
evidence at trial, and her opinion, even as supplemented by the "appendix,
fail[ed] to comply with Rule 1:7-4[(a)]." The Division and Martin's Law
Guardian urge us to affirm the termination order.
We have considered the arguments in light of the record and applicable
legal standards. We affirm.
I.
Under our well-known standards of review, 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). We defer
to the judge's factual findings because she had "the opportunity to make first-
hand 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." N.J. Div. of Youth
& Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth &
Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). 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)).
A-4837-17T2
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"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)). However,
"[a] trial court's interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special deference." R.G., 217 N.J.
at 552–53 (quoting Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)).
"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." M.M., 189 N.J. at 280 (quoting N.J. Div. of Youth
& Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)).
We focus on the three prongs defendant addresses in his appeal.
Prong Two
Prong Two requires the Division prove by clear and convincing evidence
that:
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(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[.]
[N.J.S.A. 30:4C-15.1(a)(2).]
"[T]he inquiry centers on whether the parent is able to remove the danger facing
the child." F.M., 211 N.J. at 451 (citing In re Guardianship of K.H.O., 161 N.J.
337, 352 (1999)). "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. (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.").
In finding prong two was satisfied as to both boys, the judge determined
that despite a plethora of services provided to defendant, he failed to comply
with reunification efforts and relapsed into drug use several times. In her
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appendix, the judge noted defendant suffered "three relapses" after the Division
removed the children.
Defendant argues "it was reasonably foreseeable" he could provide a "safe
and stable home to his children[,]" because although the judge ordered
termination of parental rights as to Martin, she said in her oral opinion, but not
in the order, that the Division "will have to create a plan . . . [for] reunification
between [Norbert] and [defendant]." Defendant notes that approximately one
month later, in July 2018, another judge entered an order permitting the Division
to return Norbert to defendant's home without further court order.
However, at the time of trial, defendant was living with Olivia in a one-
bedroom apartment and was unable to provide sufficient housing to reunify the
family. In addition, Dr. Loving's opinion, which the judge found credible, was
that defendant's prior substance abuse and repeated relapses, despite periods of
sobriety, posed a "risk for neglect in terms of meeting [his sons'] basic needs."
Dr. Loving also noted that when he evaluated defendant seven months earlier,
defendant was living in a half-way house and "ha[d] a long history of housing
instability." Although defendant "had a basic plan [to address his family's
housing needs] . . . he was . . . not in a position to carry out that plan."
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We also do not accept defendant's contention that the judge's decision
regarding Norbert reflects a lack of sufficient evidence as to prong two regarding
Martin. A fair interpretation of the judge's decision regarding Norbert
demonstrates that her focus was on the insufficiency of the Division's prong four
proofs, not the prong two evidence. We conclude the Division satisfied prong
two of the statutory test.
Prong Three
N.J.S.A. 30:4C-15.1(a)(3) requires the Division 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[.]" Defendant does not assert that the Division
failed to provide adequate services to him and the family; indeed, the judge
outlined those services in detail both in her oral opinion and in the appen dix.
Rather, he contends the Division never considered alternatives to
termination, such as kinship legal guardianship (KLG) or continued placement
in foster care, and the judge never articulated her findings in this regard. The
argument lacks sufficient merit to warrant extended discussion. R. 2:11-
3(e)(1)(E).
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There is nothing in the record demonstrating defendant ever asserted there
were relatives willing or able to have Martin placed with them. Moreover, it is
well established that KLG is a permanent option only "when adoption 'is neither
feasible nor likely' and '[KLG] is in the child's best interest.'" N.J. Div. of Youth
& Family Servs. v. P.P., 180 N.J. 494, 512 (2004) (quoting N.J.S.A. 3B:12A-
6(d)(3)–(4)). "[W]hen the permanency provided by adoption is available,
[KLG] cannot be used as a defense to termination of parental rights . . . ." Id. at
513. Although they demonstrated some early equivocation, by the time of trial,
Martin's resource family expressed a desire to adopt him. We reject defendant's
arguments as to prong three.
Prong Four
The fourth prong serves as a "'fail-safe' inquiry guarding against an
inappropriate or premature termination of parental rights." F.M., 211 N.J. at
453 (quoting 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. 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
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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, when the court is presented with "a
clear and compelling record warranting the termination of parental rights,"
termination is appropriate "even in the absence of evidence showing that [th e
child] has bonded with his foster parents." N.J. Div. of Youth & Family Servs.
v. F.H., 389 N.J. Super. 576, 623 (App. Div. 2007).
In considering the prong four evidence, the judge noted defendant's
extensive history of drug abuse and relapses, and the Division's almost exclusive
custody of the children since August 2012. The judge referenced defendant's
bona fide efforts prior to the October 2016 relapse, after which defendant
stopped visiting with his sons, and the disappointment that resulted fro m the
children's perspective as a result of not seeing their father.
Defendant contends there was no evidence of a bond between Martin and
his foster parents, or that they intended to adopt the child. However, Dr.
Loving's testimony was unrebutted. Although he did not perform a bonding
evaluation between Martin and his resource parents, Dr. Loving cited "some
basic information that really does point to [Martin] having attachments to these
caregivers and wanting to stay with . . . them[.]" Dr. Loving opined that both
boys "would not suffer serious and enduring harm" if defendant's parental rights
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were terminated. The lack of permanency, on the other hand, was "inherently
damaging."
As noted, there was evidence of the resource parents' intention to adopt
Martin. Pisarek's testimony, which the judge found credible, clearly
demonstrated the resource parents, initially hesitant to adopt, now expressed
their intention to do so. Before us, defendant asserts the evidence of an intention
to adopt was based solely on Pisarek's hearsay testimony and Division records,
which he claims included inadmissible hearsay. However, defendant never
objected to Pisarek's testimony or admission of these particular records at trial.
Had he done so, the Division presumably could have called the foster parents as
witnesses. See M.C. III, 201 N.J. at 341–42 (finding no "fundamental injustice"
requiring relaxation of the "invited error doctrine" where defense counsel made
no objection and "the Division could have taken steps to satisfy any evidentiary
requirements").
Defendant again asserts that the trial judge's decision regarding Norbert
demonstrates the lack of clear and convincing prong four evidence as to Martin.
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.
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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.
Here, the evidence demonstrated that Norbert had special needs, and he
had been placed and moved multiple times to successive resource homes. This
lack of permanency had adverse effects on the child. The Division was unable
to find a suitable adoptive home, nor was it foreseeable that the Division would
find one in the near future. As we see it, the judge recognized potential
exacerbation of these adverse effects from Norbert's continued "cycl[ing]
through multiple foster homes," ibid., if defendant's parental rights were
terminated. She concluded the Division failed to prove prong four as to Norbert.
The prong four evidence as to Martin, however, was sufficient.
II.
Defendant argues we must vacate the judgment of guardianship because
the trial judge considered documents that were not in evidence. He cites to
Division records that were excluded at the beginning of trial and nevertheless
referenced in the judge's appendix.
We acknowledge that a portion of the judge's appendix references
information that was not in evidence. However, these are little more than
chronological recitations of services the Division furnished to defendant and the
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family, both before and more extensively after the August 2013 second removal.
We are not convinced that the judge's reference to the inadmissible evidence
was essential to her decision. Moreover, there is ample evidence within the
record, including other parts of the appendix based on defendant's conduct and
the Division's services after the children's removal, to support the court's
findings.
We find no basis to reverse on these grounds.
III.
Lastly, defendant contends that we must vacate the judgment because the
judge failed to comply with Rule 1:7-4(a), specifically, she failed to "make the
threshold factual findings necessary for [her] fourth prong legal conclusion as
to Martin" by not assessing Martin's bond with his resource parents as compared
to his attachment to defendant. We agree with the Law Guardian's assessment
of the record, i.e., that the judge's oral "decision and appendix could have been
more organized or detailed," but these shortcomings were not fatal to our
meaningful review or to the underlying judgment.
"In a non-jury civil action, the trial court shall make findings of fact and
state its conclusions of law." M.C. III, 201 N.J. at 342 (citing R. 1:7-4(a)).
"That is, 'the trial court must state clearly its factual findings and correlate them
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with the relevant legal conclusions.'" Ibid. (quoting Curtis v. Finneran, 83 N.J.
563, 570 (1980)). "Failure to make explicit findings and clear statements of
reasoning 'constitutes a disservice to the litigants, the attorneys, and the
appellate court.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Curtis, 83
N.J. at 569–70).
In her oral opinion, the judge discussed the relationship between Martin
and defendant, and she considered Dr. Loving's bonding evaluation and trial
testimony in this regard. She also considered the relationship that Martin
enjoyed with his resource parents, both as described by the child, Dr. Loving's
assessment of the records, and Pisarek's testimony.
While we do not countenance the judge's rambling discussion of the trial
evidence, we are convinced by our own independent assessment of the record
that her conclusions were "supported by 'substantial and credible evidence on
the record'" and are entitled to our deference. F.M., 211 N.J. at 448 (quoting
M.M., 189 N.J. at 279).
Affirmed.
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