DCPP VS. J.G. AND L.R., IN THE MATTER OF GUARDIANSHIP OF N.R. (FG-09-0101-20, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-2772-19
A-2773-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.G. and L.R.,
Defendants-Appellants.
__________________________
IN THE MATTER OF THE
GUARDIANSHIP OF N.R.,
minor.
__________________________
Argued April 14, 2021 – Decided July 6, 2021
Before Judges Ostrer, Accurso and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Hudson County,
Docket No. FG-09-0101-20.
Anastasia P. Winslow, Designated Counsel, argued the
cause for appellant J.G. (Joseph E. Krakora, Public
Defender, attorney; Anastasia P. Winslow, on the
briefs).
Robert W. Ratish, Designated Counsel, argued the
cause for appellant L.R. (Joseph E. Krakora, Public
Defender, attorney; Robert W. Ratish, on the briefs).
Salima E. Burke, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Salima E. Burke, on the
brief).
David Valentin, Assistant Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Meredith Alexis
Pollock, Deputy Public Defender, of counsel; David
Valentin, on the brief).
PER CURIAM
In these consolidated cases, defendants J.G. (Jill) and L.R. (Lewis) appeal
from a February 21, 2020 guardianship judgment terminating their parental
rights to their biological son, N.R. (Neil),1 as well as from an earlier order arising
out of a best interests hearing that Neil be placed with his resource parents in
the event defendants' parental rights were terminated. Having reviewed the
record in light of defendants' arguments, we conclude the trial judge correctly
1
Pseudonyms and initials are used to protect the identity of the parties, minors
and other individuals referenced in this appeal. R. 1:38-3(d)(12)
A-2772-19
2
applied the governing legal principles, and his findings are amply supported by
competent credible evidence. Therefore, we affirm.
I.
Neil was born prematurely in April 2018. He suffered from significant
health issues, including anemia, sepsis, fetal hydrops, and bilateral profound
sensory neural hearing loss, causing him to spend several weeks in the hospital.
When he was discharged in May 2018, the Division of Child Placement and
Permanency initiated a Dodd removal 2 and placed Neil with non-relative
resource parents, M.M. (Mark Mason) and A.M. (Ann Mason). He remained in
the Masons' home throughout these proceedings.
Defendants have a history with the Division predating Neil's birth. Jill
has two sons, E.G. (Ed) and J.C. (Jim), from prior relationships and another son,
S.R. (Sam) with Lewis. In 2011, Ed and Jim were placed with a maternal
relative who, in 2014, was granted kinship legal guardianship (KLG) of the boys
under the Kinship Legal Guardian Act, N.J.S.A. 3B:12A-1 to -7. In 2018,
2
A "Dodd removal" refers to the emergency removal of a child from the home
without a court order, pursuant to the Dodd Act, which, as amended, is found at
N.J.S.A. 9:6-8.21 to -8.82.
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defendants surrendered their parental rights to Sam to a non-relative caregiver
who adopted him.
Given their lengthy involvement with the Division and the commencement
of this case, defendants submitted to multiple court-ordered psychological,
substance abuse and bonding evaluations. Additionally, the Masons and
defendants' family friends, M.P. (Meg Pratt) and T.P. (Tom Pratt),3 underwent
bonding evaluations per court order. The results of these evaluations factored
into the trial court's placement and guardianship decisions, so we highlight some
conclusions and comments from the evaluators to provide context for our
decision.
3
Throughout this litigation, defendants referred to the Pratts as "their family."
Also, Jill’s brief states the Pratt family had "long-held ties with Jill's family and
were considered kin and relatives." However, the Division acknowledged
during the best interests hearing the Pratts were not "blood relatives" and the
trial court's oral opinion of December 18, 2019 included the finding the Pratts
were "not [defendants'] relatives." Further, the record reflects one of Jill's aunts
knew Tom as a family friend for years, Tom knew Jill when she was a girl,
before she had children, and Jill advised one of her aunts was a life partner with
someone in the Pratt family. Additionally, Tom met Lewis after visits started
through the Division, and Meg met Jill through the Division. Defendants did
not provide the Pratts' names to the Division; instead, when one of Jill's maternal
aunts was being explored for possible placement and she declined due to a health
issue, she offered the names of the Pratts as family friends interested in caring
for Neil.
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During a 2017 psychological evaluation, Jill disclosed she was raised by
her maternal aunt after her parents died. She also divulged she started receiving
Supplemental Security Income disability benefits in 2009, never held a job, and
began abusing phencyclidine (PCP) when she was sixteen years old. Testing
during the evaluation revealed Jill's estimated full-scale IQ was sixty-three,
placing her below ninety-nine percent of the general population and in the
intellectually deficient range.
When Lewis was psychologically evaluated in 2016 and 2017, he achieved
a full-scale IQ score of fifty-five, the lowest possible score on that test. Because
Lewis exhibited confusion during his 2017 evaluation, his evaluator opined
"[e]ventually, it might . . . be worthwhile for [Lewis] to have a neurological
evaluation to see if there are neurological sources of his confusion."
In the spring of 2018, due to ongoing litigation regarding Sam's
placement, the Division referred defendants to Karen D. Wells, Psy.D. for
updated psychological evaluations. Dr. Wells concluded that although Jill
would not deliberately harm Sam, her "cognitive limitations, coupled with the
potential for relapse to PCP pose severe and grave risks to her son's well-being."
Once Neil was removed from defendants' care, Dr. Wells supplemented her
report to address his circumstances. She opined he would "require not only
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someone to be available to attend to [his medical] appointments, but also to
understand the information being presented by the various doctors providing
treatment, as well as follow-up with the services, medications, and scheduling
of additional appointments." She found Jill "lack[ed] the wherewithal to
independently function in this regard."
When Dr. Wells evaluated Lewis, she noted he was abusing drugs by age
thirteen, had a significant juvenile history, and was hit in the head with a metal
bat as an adolescent. She concluded he did "not possess the emotional,
psychological, or cognitive capacity to assume a parenting role" for Sam and
that his "marked intellectual deficits [were] unlikely to change." Her evaluation
included Lewis's expressed beliefs there was one hour in a day and 365 weeks
in a year. Dr. Wells ultimately recommended against defendants' reunification
with Sam, and they subsequently surrendered their rights to the child.
II.
In August 2018, Meg Pratt met with a Division worker to inquire how she
and her husband could become Neil's custodians. A Division worker introduced
Meg to Jill at the meeting, as the two had not met previously. Thereafter, and
until the best interests hearing concluded on December 18, 2019, the Division
and defendants supported Neil's placement with the Pratts in the event
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defendants' parental rights were terminated. The Law Guardian consistently
objected to this plan, instead favoring Neil's placement with the Masons.
Starting in August 2018, the trial court permitted the Pratts to attend
defendants' supervised visits with Neil. Three months later, based on the Pratts'
request to have Neil placed with them, and considering their New York
residency, the trial court ordered an expedited assessment to be conducted
through the Interstate Compact on the Placement of Children. It took over a
year for the assessment to be completed and the Pratts to be approved as a
placement option. In the interim, they became licensed as resource parents.
III.
Neil received cochlear implants in separate surgeries in May 2019. That
month, Meg notified the Division she had not yet taken sign language lessons to
communicate with Neil because she had "faith [he was] going to hear." Tom
advised he was willing to take sign language classes but had educated himself
about sign language and could fingerspell Neil's name. By this time, Ann had
been teaching Neil sign language for several months. She and her husband also
received training from Neil's audiologist, Nicole Raia, Sc.D., regarding the
maintenance and basic functions of Neil's devices, as well as how to
progressively program his processors.
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Once the Pratts became licensed, the Division proposed placing Neil with
them. It also moved to allow the Pratts overnight visits with Neil. The Law
Guardian opposed the Division's requests and asked for a best interests hearing
to address Neil's placement. In May 2019, the judge denied the Pratts overnight
visits and approved the Division’s plan of termination of parental rights,
followed by adoption "by an individual who will be determined after the best
interest hearing." In anticipation of that hearing, the judge ordered the Pratts
and Masons to submit to bonding evaluations that month with Robert James
Miller, II, Ph.D.; also, the judge scheduled the best interests hearing for a date
in August 2019.
Dr. Miller issued his comparative bonding evaluations for the Masons and
the Pratts in June 2019. The doctor determined Neil was emotionally
constrained during his evaluation with the Pratts, was not emotionally attached
or bonded with them, and they did not respond to his behavioral cues. Also, Dr.
Miller concluded Neil would not experience a negative reaction if his
relationship with the Pratts discontinued. Conversely, Dr. Miller determined the
Masons followed Neil's cues for play, responded to his needs, and used sign
language with him so that Neil increased his vocalization around them. He
opined Neil had a secure attachment to the Masons and if this relationship was
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severed, Neil would experience it as a "catastrophic loss," triggering "immediate
and enduring harm to his psychological and emotional development." The
doctor added, "[s]eparation would result in incomprehensible loss for [Neil],
would undermine his apparent progress, and undermine the needed supports in
place to help [Neil] overcome significant and enduring developmental
challenges since birth . . . . [T]here appears no psychologically valid need or
reason to change the placement arrangement."
Dr. Wells again evaluated Jill and Lewis in May and July 2019,
respectively. By then, defendants had been evicted for nonpayment of rent and
were homeless. Jill reported she and Lewis slept on the PATH train or at the
Hoboken terminal.4 Similar to her evaluation in 2018, Dr. Wells opined Jill did
not possess the cognitive capacity or wherewithal to
consistently and independently attend to [Neil's] day-
to-day needs. While it is believed . . . she loves [Neil]
and would make every effort to provide for his best
care, it is opined that even at her best, [Jill] lacks the
capacity to fully address [Neil's] needs.
Dr. Wells also expressed concern about Jill's chronic addiction to PCP,
concluding it would adversely impact her ability to care for Neil. Additionally,
4
According to the Division, it subsequently assisted defendants in securing
documentation so they could move to a shelter. They still lived at a shelter by
the time the guardianship trial concluded.
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Dr. Wells stated that "[c]onsistent with conclusions . . . from prior evaluations,
. . . [Lewis] does not possess the emotional, psychological, or cognitive capacity
to assume a parenting role. Limited in his ability to care for himself, [Lewis]
does not have the ability to independently attend to the needs of a child." Dr.
Wells recommended defendants' parental rights to Neil be terminated.
Dr. Wells also conducted bonding evaluations for defendants, the Masons
and the Pratts in July 2019. Following defendants' bonding evaluation, Dr.
Wells concluded:
Although [defendants] were observed to relate in a
loving and positive manner with [Neil], clinical support
cannot be given for them to assume care for him . . . .
They are not stable in their own functioning, continue
to engage in illicit drug use, and by their own report
recognize that they are not capable of attending to
[Neil's] needs at this time . . . . [Defendants'] ability to
accurately, appropriately, consistently and
independently respond to [Neil's] needs is lacking, with
such increasingly highlighted given [his] audiological
needs. (Emphasis added).
During the Masons' bonding evaluation, they advised Dr. Wells they
would "love to adopt" Neil. Additionally, Ann informed Dr. Wells that because
Neil required several daily medical appointments when he was initially placed
in her home, she took an extended leave of absence from work for three months.
She further disclosed she taught Neil sign language, and arranged to have a doll
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custom made for him so the doll wore cochlear implants. Dr. Wells determined
Neil trusted the Masons to be "reliable, trustworthy and accessible parental
figures," and if he remained in their care, it was "without question," he would
"continue to thrive."
When Dr. Wells assessed the Pratts, Meg reported she and her husband
remained interested in assuming custody of Neil, and that Tom was learning sign
language. She added, "if I have to go, I'll go, too." Dr. Wells asked Tom how
he was "doing with . . . sign language," and he responded, "I was getting real
good at it, but then I kind of slacked off." Dr. Wells concluded Neil was
comfortable with the Pratts but did not relate to them as parental figures. Based
on her assumption defendants would be unable to care for Neil in the foreseeable
future, Dr. Wells favorably viewed Neil's placement with the Pratts. She
acknowledged Neil might experience "acute distress, confusion and mild
regression" if he transitioned to the Pratts' home, but she determined they could
mitigate that harm. Dr. Wells opined Neil's "placement must be with a guardian
that is willing to spend at least one hour every evening dedicated to expanding
spoken language or dedicated to learning fluent American Sign Language . . .
for him to use [t]otal [c]ommunication." (Emphasis added). Understanding the
Pratts "had not been given the opportunity or responsibility to independently
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care for" Neil, Dr. Wells nonetheless concluded Neil's "short and long-term
[b]est [i]nterest needs can best be met by" the Pratts.
Prior to the best interests hearing scheduled for August 2019, defendants
requested a postponement to enable them to secure bonding evaluations with
their experts. The judge rescheduled the hearing to October 1, 2019 and notified
all parties at that time that Neil's audiologist would be testifying at the hearing.5
Additionally, in August 2019, at the Law Guardian's request, Dr. Miller issued
a report concerning the Division's request that Neil start overnight visits with
the Pratts. The doctor recommended against overnight visits, stating,
"[s]eparating [Neil] from his current home, bedroom/toys, and important
nighttime routines with the adults who, from his perspective are his
(psychological) parents, will most probably result in increasing confusion and
frightening separation anxiety." The trial court subsequently denied the
visitation request without prejudice, stating, in part:
The court is not inclined to grant overnight visitation to
[the Pratts] until . . . they have demonstrated they have
a full working understanding of [Neil's] remaining
medical issues that they would need to deal with when
the child is in their home overnight. The court notes
that in the Division's report, Dr. Wells recommends [the
5
The judge issued another order in September 2019, confirming Drs. Wells and
Miller also would testify at the best interests hearing.
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Pratts] learn about the "cochlear implants, process[ors],
and battery requirements, daily activities, feeding
times, and nighttime routine[]" of the child.
Shortly after the best interests hearing was adjourned, Dr. Wells updated
her position regarding Neil's placement. She stated she was "no longer able to
clinically support that [Neil] would be removed from his current resource home
to be placed with [the Pratts]." She found it concerning Meg had not attended
scheduled appointments to complete bonding evaluations arranged by
defendants' attorneys and had not consistently attended Saturday visits with
Neil. Dr. Wells also was troubled neither one of the Pratts attended a critical
appointment with Dr. Raia in August 2019 "to receive training and information
regarding [Neil's] progress and needs."
In late September 2019, Lewis tested positive for PCP and the Division
reported he had not complied with a substance abuse evaluation or treatment.
At that point, defendants again asked the court for time to obtain updated
bonding evaluations with their experts, citing "unexpected work emergencies on
the part of [Meg] that caused her not [to be] able to attend the selected dates
. . . put forth by the experts." The Division supported the adjournment request,
but the Law Guardian objected, arguing defendants had "ample opportunity to
conduct these bonding evaluations." The Law Guardian contended the best
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interests hearing previously was adjourned to allow defendants to coordinate the
Pratts' bonding evaluations, the hearing was due to commence within a matter
of days, her bonding expert was prepared to testify, and the timing of defendants'
request was highly prejudicial to Neil. The judge denied defendants'
adjournment request, explaining Neil had been in placement since the spring of
2018, the parties were told in May 2019 about the upcoming best interests
hearing, and he was being asked "[o]n the eve of the hearing . . . for additional
time." He stated he would not "delay this child's permanency any further." Also,
as this hearing occurred two days after Dr. Wells withdrew her support for Neil's
placement with the Pratts, the judge stated he had no evidence "from any expert
. . . at this time" to suggest the Pratts would be an "appropriate placement." He
concluded, "[t]o adjourn this case to give [Meg] the opportunity to show up to
this appointment when she had that for the last four months, doesn’t make sense
to me." Likewise, the judge denied defendants' request to initiate overnight
visits between Neil and the Pratts, finding he did not have "any proffer of any
single expert that says that this is a good idea." Significantly, the judge clarified
he was "just ruling on . . . a motion to delay this trial," that "no report . . . exists
to serve late," and he would consider an application to serve a late expert report
if one was secured.
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IV.
The best interests hearing commenced on October 1, 2019 and concluded
over two months later. During the nine-day proceeding, over a dozen witnesses
testified, including the Masons, the Pratts, the Division's adoption specialist,
Kevin Roleson, and Drs. Wells, Raia and Miller.
On the first day of trial, Dr. Raia testified about the importance of Neil
having "total communication" abilities, which she described as using "hearing,
spoken language, and American Sign Language." Further, she emphasized the
importance of a parent applying early intervention therapy techniques on a daily
basis, stating "children who don't get early intervention or get inconsistent early
intervention really don't develop good speech and language. It's really the
foundation for all other learning." She added, "[t]he parent has to take every
moment of their day to expand upon language."
Following Dr. Miller's testimony at the end of October, counsel for each
defendant informally requested permission to proceed with a bonding evaluation
between the Pratts and Neil. The judge reminded counsel they knew of the best
interests hearing "way in advance," that their applications could possibly delay
the hearing, and they should have filed formal motions in support of their
requests. The judge further remarked it would be unfair to Neil to permit the
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defense to secure bonding evaluations after Dr. Miller testified. Once
defendants renewed their request for the Pratts' bonding evaluation via formal
motions, the judge denied their applications, finding it would be "fundamentally
unfair" to Neil to permit bonding evaluations at that juncture.
Prior to the conclusion of the best interests hearing, defendants moved to
have the Pratts submit to bonding evaluations in anticipation of the guardianship
trial. The judge also denied these requests, stating, "I'm not going to allow any
evaluations of the [Pratts] at this time, subject to the ruling in this case."
Similarly, when the judge was repeatedly asked by the Division during the
course of the best interests hearing to allow the Pratts increased and overnight
visits, he consistently declined to alter the status quo. At one point in the
proceeding, he found the application "was not supported by the evidence thus
far." He also determined expanding visits at that time could impact Neil's ability
to speak and "have language" in his life.
When the Division called Dr. Wells to testify, she acknowledged she had
recently withdrawn her support for placing Neil with the Pratts. Dr. Wells
confirmed she was informed the Pratts purportedly were unaware of Dr. Raia's
August 2019 appointment with Neil and were exercising visitation, so she
renewed her support for Neil's placement with the Pratts. She concluded they
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possessed "the cognitive capacity, the commitment, and the wherewithal to
attend to [Neil's] needs." Further, she reiterated her position that Neil's
transition to the Pratts home would cause him only temporary harm, which the
Pratts could mitigate.
Approximately two weeks before the hearing concluded, the Division
proffered an opinion by an expert audiologist and moved to add the expert, as
well as two fact witnesses to its witness list. The judge precluded the expert's
report, noting the Division's audiologist did not examine Neil, did not meet his
caregivers, and reviewed only certain unspecified records. The judge also
concluded it would be unfair to Neil to allow the Division to produce an
unannounced expert so far into the proceeding. Similarly, the judge denied the
Division's request to add fact witnesses to its list, reminding counsel the hearing
started "months ago," it was delayed to accommodate the parties' needs, and he
was not prepared to "toss out any kind of discovery process and rules of court
to just start naming witnesses as we go along because our case isn't what we
thought it was when we started. That's not how it works."
At the close of the hearing in December 2019, the Division represented
defendants were living in a New York shelter and were noncompliant with
services. For example, defendants failed to attend their individual therapy
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sessions and Jill missed all three substance abuse assessments scheduled in
November 2019. The Division's adoption specialist also testified Meg did not
attend bonding evaluations scheduled with defendants' expert and Neil, but Tom
had attended one such evaluation. Further, the specialist testified he informed
the Pratts about attending one of Neil's critical audiology appointments with Dr.
Raia, and he affirmed he had emphasized to them how important it was for them
to attend bonding evaluations with defendants' experts.
V.
When the hearing concluded, the judge determined it was in Neil's best
interests to remain with the Masons. He explained he was not persuaded the
Pratts fully understood the demands involved in caring for Neil , or that moving
Neil to their New York home would be in Neil's best interests, given that his
medical specialists were in New Jersey and "this [litigation] could go on for a
while because we could have an appeal of the [termination decision]." Referring
to Dr. Miller's testimony and crediting same, the judge found Neil would be
traumatized if moved to the Pratts' home, stating:
Why would you take a child that . . . doesn’t speak,
doesn’t have a bond, put [him] in a car, in a train, take
[him] away from the people that are [his] psychological
parents and leave [him]alone? That child cannot
communicate in any way, can’t express . . . terror, . . .
fear, . . . anxiety. Can’t ask to go home, can’t ask for
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help, can’t say what’s going on, can’t understand
anything that’s being said to him. Doctor Miller was
absolutely right, why would you do that? It is
terrifying, the thought of that.
The judge further accepted Dr. Miller's testimony that removing Neil from
the Masons' home would trigger a "catastrophic loss" for the child. The judge
noted even Dr. Wells acknowledged Neil would suffer some harm if moved from
his existing home. Significantly, the judge also believed Dr. Raia's testimony
that trauma could cause Neil to regress, adding, "[w]hat the Division is asking
this court to do is potentially traumatize this child to the point where [he] will
regress, possibly lose the ability to have language in [his] life." The judge
perceived the Division's plan to remove Neil from the Masons and place him
with the Pratts as "a big gamble," given Neil's hearing issues, because the Pratts
"might not really understand everything that's involved." While the judge found
the Pratts "tried to educate themselves in some way," "they did not start any sign
language until recently. Mr. [Pratt] could not really show us any sign language
when he was here in court and testified." The judge also cited to "lots of
evidence in this case regarding the [Pratts] and their schedule and their ability
to make time," concluding, "I do believe that it would be difficult for them to
make all of [Neil's] appointments."
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By comparison, considering the credible testimony provided by the
Masons and Dr. Raia, the judge found the Masons had a "comprehensive and
sufficient understanding of [Neil's] condition," provided "caring, consistent
treatment," for Neil, asked for "the best schools, . . . the best equipment" for
him, and ensured he received all necessary services. Further, the judge observed
that not counting "therapists and other people that are providing different types
of services," the Masons had attended ninety-one doctor's visits for Neil after he
was placed with them. Finding Neil "does get sick quite often," and courts
"routinely consider a child's medical condition when making decisions regarding
. . . placement," the judge concluded Neil should remain with the Masons.
Accordingly, he amended the permanency goal to include the termination of
defendants' parental rights, followed by adoption by the Masons.
VI.
Dr. Miller conducted two additional bonding evaluations prior to the
guardianship trial, one with defendants and the other with the Masons. He
opined Jill's parental capacity remained "severely compromised," and although
"recommended to receive [an] assessment for disability services, . . . [Jill]
asserted strongly . . . she would do nothing that was recommended by the
Division." The doctor noted Jill "continued to demonstrate significant parenting
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deficits due to longstanding and chronic abuse of PCP" and placing Neil in her
custody "would result in increasing and avoidable harm, risk to his safety, and
exposure to emotional neglect." He added Jill had not "demonstrated minimal
parental capacity and has delayed reunification." Regarding Lewis, Dr. Miller
found he was "noncompliant with services," "dependent on [the] use of PCP,"
and "unable to provide minimal parenting skills" to care for Neil.
Dr. Miller concluded:
Both adults spoke to [Neil] without making eye contact
and appeared unable to use sign language in a way that
[Neil] would respond. [Neil] vocalized minimally
during the observation. Of some concern, both parents
appear[ed] to laugh as [Neil] fell, suggesting lack of
emotional responsiveness . . . .
Finally, the record reflects significant efforts have been
made by [the Division] to engage the biological parents
in supervised visitation and supportive interactions
with family friends during supervised visits. It remains
concerning . . . neither parent has appeared to
demonstrate sufficiently positive parenting skills from
learning or support.
It is apparent both parents continue to demonstrate
significant parenting deficits for providing safety,
minimal nurturance, empathic responses, or
redirection. [Neil] will not experience harm or
emotional reaction if separated from the biological
parents by the court. He will not experience more harm
than good if separated from the biological parents.
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Conversely, following his bonding evaluation with the Masons, Dr. Miller
found Neil experienced "increasing vocalization in the presence of both resource
parents, who communicated with him with eye contact, sign language, and
reinforcing language based on his vocalizations." The doctor also determined
the Masons and Neil had a "strong positive emotional bond between [them]"
and separating Neil from his resource parents "would result in immediate and
enduring harm" to the child. He reported:
It is in the best interest of [Neil] and the least
detrimental alternative to remain in the home of the
resource parents for the purpose of adoption if . . .
ordered by the court. [Neil] will continue to overcome
significant early challenges to his development,
develop further resilience, and he will
emotionally/cognitively thrive in the home of the
resource parents to achieve need permanency.
VII.
The guardianship trial commenced in January 2020 and concluded the
next month. When the trial began, the Division informed the court it would not
relitigate Neil's placement with the Masons. The judge advised counsel that
while he would not reopen the "best interest matters," given his recent placement
decision, he would not preclude defendants from addressing "reasonable efforts
issues" related to Neil's placement.
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The Division called two witnesses at the guardianship trial, namely Dr.
Wells and its adoption specialist; the Law Guardian called Dr. Miller and Ann
to testify. Defendants did not present witnesses or documentary evidence at the
guardianship trial. Ann and the Division's adoption specialist provided
testimony consistent with their testimony at the best interests hearing. Similarly,
Dr. Miller's testimony aligned with his report from his most recent bonding
evaluations. For example, he again testified if Neil were removed from the
Masons' home, "[i]t would be catastrophic to his development. He would lose
all of his gains . . . . And that would be a life-long problem that would never go
away."
Likewise, Dr. Wells again opined neither defendant was able to assume
care for Neil "in the foreseeable future," explaining defendants' "lack of . . .
stable housing [and] their inability to manage their own lives independent of
assistance" led her to conclude returning Neil to either one of his parents' care
would create a risk of "grave and severe" harm. She testified Jill's cognitive
limitations were "not changeable" and Lewis' intellectual capacity was "not
subject to change." Moreover, she opined if Neil were removed from the
Masons, he would experience "a sense of bewilderment, confusion." She opined
Neil considered his resource parents his "psychological parents" given their
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"continuity of care . . . and because of how they've responded to his needs."
Regarding defendants' ability to mitigate any loss Neil would experience if
removed from the Masons' custody, Dr. Wells believed defendants would
"engage in some sort of minimization of that loss."
VIII.
On February 21, 2020, the trial judge issued a thoughtful and
comprehensive thirty-page opinion, finding the Division met its statutory burden
for termination under N.J.S.A. 30:4C-15.1(a). In support of his termination
decision, the judge painstakingly reviewed the factual and procedural
background of this matter, the results of various evaluations, and the testimony
adduced at the best interests hearing, as well as the guardianship trial.
Preliminarily, the judge stated, "the court's rationale in deciding the best
interest hearing [was] important to understanding the court's decision to
terminate [defendants'] parental rights." He noted he granted the request for a
best interest hearing based on the representation of counsel that "there would be
two reasonably plausible placement plans." After hearing expert testimony at
the best interests hearing, the judge found "the competing placements were not
equally reasonably plausible," and in fact, "the Division's placement plan
[involving the Pratts] was simply put, implausible." The judge concluded what
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"the Division was essentially asking the court to do was to potentially traumatize
the child in order to try to forge or increase a bond with non-relatives, which
would cause [Neil] to regress and potentially lose his language ability," whereas
"there was clear and consistent evidence that the [Masons] are providing [Neil]
with what he needs to continue to thrive . . . . The child is placed exactly where
he needs to be."
Next, the judge outlined how the Division established, by clear and
convincing evidence, each of the four prongs of the best interest standard under
N.J.S.A. 30:4C-15.1. After assessing each prong and concluding the Division
carried its burden, the judge terminated defendants' parental rights.
IX.
On appeal, defendants argue the trial court erred in finding the Division
satisfied the four-pronged best interests test under N.J.S.A. 30:4C-15.1(a).
Further, Jill contends: (1) the best interests hearing "did not afford [her] due
process on the need for an expert audiologist"; (2) the trial court erred in
rejecting the Division's permanency plan after denying expanded visits for the
Pratts and a defense bonding evaluation, thereby depriving defendants of "an
adequate opportunity to present" evidence about whether the Division's plan was
in Neil's best interests; (3) the placement decision at the conclusion of the best
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interests hearing "failed to give due regard to [defendants'] choice of care
providers and sibling rights, and was not objectively reasonable"; and (4) the
Division "should be judicially estopped from seeking termination" of her
parental rights because she was prejudiced at the guardianship trial by the
Division's "inconsistent positions."
In addition to contending the Division failed to satisfy its burden under
N.J.S.A. 30:4C-15.1(a), Lewis argues the trial court erred by approving a
permanency plan that included adoption by resource parents when there were
"candidates for adoption who were already approved, and willing to adopt."
We have considered these contentions and conclude they are
unpersuasive. We add the following comments.
When a trial court is confronted with two "reasonably plausible"
placement plans, "[n]either of the proposed plans is entitled to a presumption of
correctness. The court is to receive testimony, evidence and information from
all relevant sources pertaining to [the child's] best interests and determine a
permanency plan that ensures [his or] her safety and health and serves [his or]
her best interests." In re C.R., 364 N.J. Super. 263, 283 (App. Div. 2003). Upon
appellate review, findings by the trial judge are considered binding "when
supported by adequate, substantial and credible evidence." Rova Farms Resort,
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26
Inc. v. Inv. Ins. Co. of Am., 65 N.J. 474, 484 (1974). In particular, "[b]ecause
of the family courts' special jurisdiction and expertise in family matters,
appellate courts should accord deference to family court factfinding." Cesare v.
Cesare, 154 N.J. 394, 413 (1998).
Here, the record contains overwhelming credible evidence to support the
trial court's finding it was in Neil's best interest to continue his placement with
the Masons. As we have noted, following several trial days and after considering
the testimony of multiple witnesses, including the divergent opinions of Drs.
Wells and Miller, the judge credited Dr. Miller's testimony over that of Dr. Wells
when opting to place Neil with the Masons rather than the Pratts.
The trial court has the authority to weigh and evaluate expert testimony.
N.J. Div. of Youth & Fam. Servs. v. J.S., 433 N.J. Super. 69, 93 (App. Div.
2013). The weight afforded an expert's opinion is entirely within the court's
discretion and we are satisfied that discretion was not abused here. See Cnty.
of Middlesex v. Clearwater Vill., Inc., 163 N.J. Super. 166, 173-74 (App. Div.
1978). Our conclusion is bolstered by the fact Drs. Miller and Wells did not
dispute the Masons provided exceptional care for Neil and ensured his daily
physical, emotional and medical needs were met.
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To the extent defendants contend the trial court erred in "approving a
permanency plan that included adoption by the resource parents" when there
were "kinship candidates" preferred by defendants, we disagree. KLG is only
available when adoption is "neither feasible nor likely." N.J. Div. of Youth &
Fam. Servs. v. P.P., 180 N.J. 494, 513 (2004). It cannot be used as a defense to
termination of parental rights. Ibid. Here, the Masons consistently confirmed
they wished to adopt Neil. Additionally, regardless of defendants' preference to
have Neil placed with the Pratts rather than the Masons, the trial court was not
obliged to defer to their preference. Even if the judge found the Pratts were
defendants' relatives, which he did not, "there is no presumption favoring the
placement of a child with such relatives." J.S., 433 N.J. Super. at 82. "Rather,
'a presumption of custody only exists in favor of a natural parent as opposed to
placement with relatives or foster parents.'" Ibid. (quoting N.J. Div. of Youth
& Fam. Servs. v. M.F., 357 N.J. Super. 515, 527 n.3 (App. Div. 2003)).
Moreover, a trial court's paramount consideration is the selection of a placement
plan that best serves a child's interests. In re C.R., 364 N.J. Super. at 283.
Regarding Jill's argument her due process rights were violated based on a
lack of notice that an opinion from an expert audiologist was warranted, we are
not persuaded. The record reflects Neil's medical needs, and the ability of any
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proposed caregiver to meet those needs, including those related to his hearing
loss, were central to this litigation. Further, the multiple evaluations conducted
throughout this litigation confirmed as much. Moreover, the record reflects the
Law Guardian included Dr. Raia on her witness list roughly two months prior to
the best interests hearing. Additionally, all parties knew months in advance
when the best interests hearing was due to occur, and at defendants' request, the
best interests hearing was postponed from August 20, 2019 to October 1, 2019
to provide defendants additional time to prepare for the hearing. Importantly,
defendants also were advised in August 2019 that Dr. Raia would be testifying
when the hearing commenced on October 1, 2019. Under these circumstances,
we are not convinced defendants were denied due process.
We also decline to find the judge abused his discretion in precluding the
Division from introducing a letter from an audiologist and adding the expert to
its witness list after the hearing was well underway. The judge characterized
the audiologist's letter as a "net opinion" which "doesn't weigh as much as the
paper it's on. It's a doctor saying, if the patient does everything they're supposed
to do, they'll be fine." The judge reasoned the Division's audiologist had not
reviewed Dr. Raia's records, and noted the expert "has not even met with this
child . . . . [and] has not examined this child. He has not met with the resource
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parents. He's not met with . . . the [Pratts]. So it's obviously a net opinion."
Moreover, the judge determined the Division was attempting to serve a "one-
page, three sentence opinion expert report" "way too late." Further, he again
expressed concern about "delaying [Neil's] permanency."
Evidentiary rulings are reviewed under an abuse of discretion standard.
N.J. Div. of Child Prot. & Permanency v. K.G., 445 N.J. Super. 324, 342 (App.
Div. 2016). "Absent a manifest denial of justice, we do not disturb a trial judge's
reasoned exercise of his or her broad discretion when making relevance and
admissibility determinations." N.J. Div. of Youth & Fam. Servs. v. N.S., 412
N.J. Super. 593, 622 (App. Div. 2010) (citing Lancos v. Silverman, 400 N.J.
Super. 258, 275 (App. Div. 2008)). Further, while parties generally are
permitted to present expert witnesses, a "trial judge's discretion in excluding
evidence is broad." Ratner v. Gen. Motors Corp., 241 N.J. Super. 197, 202 (App.
Div. 1990). "The decision as to exclusion must stand unless so wide of the mark
that a manifest denial of justice resulted." Ibid. No such manifest denial of
justice occurred here. Thus, we perceive no basis to disturb the judge's decision
to exclude the testimony and late report from the Division's audiologist.
Regarding defendants' contention their requests for bonding evaluations
were improperly denied, we are convinced this argument is belied by the record.
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Although defendants were informed in May 2019 that the best interests hearing
would proceed on August 20, 2019, they failed to timely obtain bonding
evaluations between Neil and the Pratts. Thereafter, the judge granted their
request for additional time to secure bonding evaluations. Although the hearing
was postponed for several more weeks, defendants complained they encountered
scheduling issues for the bonding evaluations. Given Neil's need for
permanency, the judge made clear he did not wish to further delay the hearing,
but left open the possibility for defendants to introduce a late expert's report.
We decline to second-guess the judge's discretionary decision in this regard.
Likewise, we are not offended by the judge's response to defendants'
belated request to obtain bonding evaluations for the Pratts for use in the
guardianship trial. The record reflects the judge did not reject the request for
the evaluations out of hand. Rather, he simply stated he would not "allow any
evaluations of the [Pratts] at this time, subject to the ruling in this [placement]
case."
Defendants also argue the trial court erred by refusing to grant the Pratts
overnight or extended daytime visits prior to rendering a decision about Neil's
placement. Again, we disagree. The judge had no obligation to grant visits to
"create a psychological bond or increase a psychological bond" with the Pratts
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at the cost of Neil's wellbeing, particularly since he was thriving in the Mason's
home. See In re of Guardianship of S.C., 246 N.J. Super. 414, 426 (App. Div.
1991).
X.
Finally, we consider defendants' contention the Division failed to prove
the four prongs of the "best interests of the child" test under N.J.S.A. 30:4C -
15.1(a). Once again, we are not convinced.
In reviewing a decision to terminate parental rights, we recognize our
scope of review of the trial court's factual findings is limited. N.J. Div. of Youth
& Fam. Servs. v. L.J.D., 428 N.J. Super. 451, 476 (App. Div. 2012). "A Family
Part's decision to terminate parental rights will not be disturbed when there is
substantial credible evidence in the record to support the court's findings." N.J.
Div. of Child Prot. & Permanency v. K.T.D., 439 N.J. Super. 363, 368 (App.
Div. 2015). We owe deference to the trial judge's evaluation of witness
credibility, N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 430, 446 (2012),
and review a trial judge's evidentiary rulings for an abuse of discretion , K.G.,
445 N.J. Super. at 342 (citing State v. J.A.C., 210 N.J. 281, 295 (2012)). On the
other hand, we review a trial court's legal interpretations de novo. N.J. Div. of
Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014).
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Parents have a "constitutional right 'to raise [their] child and maintain a
relationship with that child, without undue interference by the state.'" N.J. Div.
of Child Prot. & Permanency v. S.D., 453 N.J. Super. 511, 518 (App. Div. 2018)
(quoting N.J. Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1, 18 (2013)).
However, parental rights are not absolute. In re Guardianship of K.H.O., 161
N.J. 337, 347 (1999). They are balanced against the State's responsibility to
protect the welfare of children, and courts use the best interests of the child
standard to balance these interests. Ibid. (citing In re Guardianship of J.C., 129
N.J. 1, 10 (1992)).
A court may terminate parental rights only if the Division proves, by clear
and convincing evidence, the four prongs of the "best interest" test. N.J. Div.
of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 604-11 (1986). Specifically, the
Division must show by clear and convincing evidence that:
(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;
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(3) The division 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).]
The considerations involved in applying the best interest test are "extremely fact
sensitive and require particularized evidence" addressing the specific
circumstances of the case. M.M., 189 N.J. at 280 (quoting N.J. Div. of Youth
& Fam. Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2005)). The four
prongs "are not discrete and separate; they 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.
Under prong one, "the [Division must] demonstrate harm to the child by
the parent," such as "the endangerment of the child's health and development
resulting from the parental relationship." Ibid. The focus is not on a "single or
isolated harm." Ibid. Prong one "addresses the risk of future harm to the child
. . . . " N.J. Div. of Youth & Fam. Servs. v. H.R., 431 N.J. Super. 212, 222 (App.
Div. 2013). "Courts need not wait to act until a child is actually irreparably
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34
impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161
N.J. 365, 383 (1999).
Under prong two, the Division must show a parent is unable or unwilling
to correct the circumstances that led to the Division's involvement. K.H.O., 161
N.J. at 348-49. "The question is whether the parent can become fit in time to
meet the needs of the child." N.J. Div. of Youth & Fam. Servs. v. T.S., 417 N.J.
Super. 228, 244 (App. Div. 2010). Additionally, the Division may prove prong
two by establishing "that the parent is unable to provide a safe and stable home
for the child and that the delay in securing permanency continues or adds to the
child's harm." K.H.O., 161 N.J. at 348-49.
Under prong three, the Division must show it made reasonable efforts to
provide services and considered alternatives to termination of parental rights.
N.J.S.A. 30:4C-15.1(a)(3). Reasonable efforts include:
(1) consultation and cooperation with the parent in
developing a plan for appropriate services;
(2) providing services that have been agreed upon, to
the family, in order to further the goal of family
reunification;
(3) informing the parent at appropriate intervals of the
child's progress, development, and health; and
(4) facilitating appropriate visitation.
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[N.J. Div. of Child Prot. & Permanency v. T.D., 454
N.J. Super. 353, 382 (App. Div. 2018) (citing N.J.S.A.
30:4C-15.1(c)).]
In analyzing this prong, the Division's "efforts to provide services '[are]
not measured by their success.'" N.J. Div. of Youth & Fam. Servs. v. A.R., 405
N.J. Super. 418, 441 (App. Div. 2009) (quoting D.M.H., 161 N.J. at 393). The
reasonableness of these efforts is evaluated on a case-by-case basis. Ibid.
Where the Division has exerted efforts such as seeking out relatives to care for
the children, supporting the parent in maintaining a relationship with the
children, supervising visitation, and sending a parent to therapy and treatment
programs, the third prong is satisfied, despite the parent's failure to rehabilitate
him or herself. See K.H.O., 161 N.J. at 354.
Under prong four, the Division must prove the termination of parental
rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). To evaluate
whether the Division met this criterion, the court weighs the harm that a child
might suffer from the termination of parental rights against any harm stemming
from the removal from the resource placement. K.H.O., 161 N.J. at 355. It does
not require a showing that a child will suffer no harm as a result of severing a
child's relationship with the child's biological parents. Ibid. The question is
"whether, after considering and balancing the two relationships, the child will
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suffer a greater harm from the termination of ties with [his] natural parents than
from permanent disruption of [his] relationship with [his] foster parents." N.J.
Div. of Youth & Fam. Servs. v. I.S., 202 N.J. 145, 181 (2010) (quoting In re
Guardianship of J.N.H., 172 N.J. 440, 478 (2002)).
Here, it is clear the judge's detailed findings regarding prongs one and two
were tethered to substantial competent, credible evidence, including expert
testimony, which overwhelmingly demonstrated defendants had endangered and
would continue to endanger Neil, as they continued to use PCP, were homeless,
and noncompliant with services.
Additionally, we discern no error in the judge's finding the Division met
prong three considering its "reasonable efforts" to reunify defendants with Neil
and its assessment of alternatives to termination. The record reflects the
Division provided defendants with transportation, supervised visits, urine
screens, substance abuse evaluations, and psychological and bonding
evaluations, and considered placement with the Pratts once a series of
evaluations confirmed defendants could not and would not be able to care for
Neil for the foreseeable future.
Regarding prong three, the Division and Law Guardian contend
defendants now raise the novel argument there was no evidence the Division
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provided services to them to address their cognitive limitations, and Jill newly
argues the lack of such services violated the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101. Jill counters that she raised the issue of reasonable
accommodations before the trial court, and points to a brief statement her
counsel made in his closing argument.
Our review of the record reveals neither defendant discussed the ADA or
how it related to prong three at closing argument. Instead, in summation, Jill's
counsel merely stated, "the issue as we presented to Your Honor is whether these
parents can safely parent [Neil] now with a reasonable accommodation given to
them." To the extent this passing comment can be construed as raising an ADA
argument, we are not convinced the argument has merit. The Division provided
numerous services to defendants to assist defendants in overcoming their
disabilities. Nonetheless, the trial court accepted Dr. Wells' testimony that
defendants' cognitive limitations would not change and they would "never be
able to parent independently." He added, "[n]o amount of time can change that.
No services or therapy can change that." Additionally, the record reflects
defendants were noncompliant with services offered, and their ongoing struggles
with substance abuse and homelessness impacted their ability to parent.
Moreover, as we have stated, allowing "the provisions of the ADA to constitute
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a defense to a termination proceeding would improperly elevate" the parent's
rights above the child. N.J. Div. of Youth & Fam. Servs. v. A.G., 344 N.J.
Super. 418, 442 (App. Div. 2001).
Finally, regarding prong four, the judge relied on Dr. Miller's testimony
and the results of the expert's comparative bonding evaluations to find Neil had
a strong, secure bond with the Masons, the child lacked an emotional bond with
his parents, and termination of defendants' parental rights would not do more
harm than good. We discern no error in this regard.
Because we perceive no basis to disturb the judge's factual findings, his
legal determination that the Division satisfied its burden under N.J.S.A. 30:4C-
15.1(a) is unassailable. To the extent we have not specifically addressed any of
defendants' remaining arguments, we are satisfied they are without sufficient
merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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