DCPP VS. E.B. AND N.B.IN THE MATTER OF THE GUARDIANSHIP OF N.P.B. AND A.B.(FG-02-0040-15, BERGEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-2856-15T4
A-2857-15T4
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
E.B. and N.B.,
Defendants-Appellants.
___________________________
IN THE MATTER OF THE
GUARDIANSHIP OF
N.P.B. and A.B.,
Minors.
______________________________
Submitted September 12, 2017 – Decided September 22, 2017
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Bergen
County, Docket No. FG-02-0040-15.
Joseph E. Krakora, Public Defender, attorney
for appellant E.B. (Dianne Glenn, Designated
Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney
for appellant N.B. (Susan M. Markenstein,
Designated Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel and on
the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Karen A.
Lodeserto, Designated Counsel, on the brief).
PER CURIAM
Elena is the mother of two boys, Nathan and Alfred, born in
May 2015 and January 2007, respectively; her husband, Noah, is
their father.1 The New Jersey Division of Child Protection and
Permanency (the Division) filed a guardianship complaint naming
both parents as defendants. The trial judge heard testimony over
two days from three witnesses and entered a judgment of
guardianship terminating defendants' parental rights and awarding
guardianship to the Division.
Defendants' separate appeals were consolidated. Each
defendant claims that the judge's conclusions were not supported
by clear and convincing evidence. Noah also contends: the judge
did not consider alternatives to termination "because other family
members were willing and available to supervise visitation; he had
recovered by the time of trial"; and the court ceded its duty to
1
We utilize the trial court's pseudonyms for the parties and the
children, to protect their privacy, and for the reader's
convenience.
2 A-2856-15T4
determine the best interests of the children to the Division's
expert who testified about the results of his evaluations of the
parents and children. We find it necessary to remand this matter
to the trial court with the direction that it supplement its
findings of fact and conclusions of law, after considering evidence
relevant to the bond between the boys and their parents and
proffered evidence that the boys would not be allowed contact with
their parents if termination was granted.
The judge's recitation of the applicable law evidenced that
he understood the import of his decision to terminate the
defendants' fundamental and highly protected parental rights.
Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1394-
95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O.,
161 N.J. 337, 346-47 (1999). The Legislature has declared, as a
matter of public policy, "[t]hat the preservation and
strengthening of family life is a matter of public concern as
being in the interests of the general welfare . . . ." N.J.S.A.
30:4C-1(a).
Parental rights, however, are not inviolable. N.J. Div. of
Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). "The
balance between parental rights and the State's interest in the
welfare of children is achieved through the best interests of the
child standard." K.H.O., supra, 161 N.J. at 347. The Division
3 A-2856-15T4
must prove the following four factors by clear and convincing
evidence before parental rights may be terminated:
(1) The child’s safety, health, or development
has been or will continue to be endangered by
the parental relationship;
(2) The parent is unwilling or unable to
eliminate the harm facing the child or is
unable or unwilling to provide a safe and
stable home for the child and the delay of
permanent placement will add to the harm. Such
harm may include evidence that separating the
child from his resource family parents would
cause serious and enduring emotional or
psychological harm to the child;
(3) The 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); see also A.W., supra,
103 N.J. at 604-11.]
The standards "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., supra, 161
N.J. at 348.
The trial judge heeded the mandate of the Court in conducting
a fact sensitive analysis of the first three factors, specific to
each defendant. Ibid.4 A-2856-15T4
As to the first statutory prong, the judge found both parents'
"extensive history of substance abuse" related to their criminal
involvement, including one incident when Noah and Elena were
arrested after purchasing drugs while the boys were present, and
for possessing stolen property.2 That event prompted the Division
to remove Nathan and Alfred. Both parents, in a subsequent court
proceeding, stipulated that their actions resulted in the abuse
or neglect of the children.
The judge considered subsequent arrests of both parents for
other crimes, and their ensuing imprisonment, as well as Noah's
enrollment in Drug Court just prior the court's decision in this
matter. The judge found, from Elena's statement to Dr. Miller,3
that the impetus for the parents' criminal behavior was their need
for money to support Noah's drug habit. Other findings supported
the judge's conclusion that the first prong was proven: both
parents' failure to maintain sobriety; their positive drug tests;
2
This incident was not sanctioned by any law enforcement agency
as part of the parents' periodic role as confidential informants
who performed purchases of controlled dangerous substances under
the direction of police. We, therefore, find Noah's argument that
the State was "complicit and a participant in the harm brought to
the children" by using Noah "as a quasi-deputized operative and
informant" is without merit. R. 2:11-3(e)(1)(E).
3
Dr. Robert James Miller II, Ph.D., found by the court to be an
"expert in psychology," conducted psychological evaluations of all
four members of the family, and bonding evaluations between each
parent and the boys. He was called by the Division to testify.
5 A-2856-15T4
Elena's admission to Dr. Miller of the possibility that the boys
witnessed intravenous drug use; and the parents' inability to
secure stable housing.
The evidence found by the judge clearly and convincingly
established the first prong of the statutory requirements for
termination. Although there may have been a willingness to refrain
from endangering the boys, the judge found neither parent had the
ability to do so.
The judge's conclusions relevant to the first prong
dovetailed with his findings supporting the second prong, a common
occurrence resulting from the overlap of these two factors. N.J.
Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88
(App. Div. 2006), certif. denied, 190 N.J. 257 (2007).
The judge detailed Noah's continued substance abuse, failure
to complete substance abuse treatment programs, missed or refused
drug tests, drug-related arrest, theft from his employer and
concomitant arrest and eviction from his employer's residence, and
failure to produce proof of his attendance at the AA/NA program
he said he was attending in lieu of a treatment program. The
judge observed Noah had "years to start the process" to reunify
with his children, "but failed to do so." Noting that Noah's
"early involvement with the Division was marked with disinterest
and noncompliance," the judge found Noah's more recent attempts
6 A-2856-15T4
to address his problems was "a case where too little has been far
too late."
Likewise, the judge found Elena's long history with the
Division included missed drug tests, professions of sobriety
notwithstanding positive drug screens, arrests and incarceration
during which she did not participate in services provided by the
Division or visitation with the boys, and failure to participate
in or complete treatment programs. The judge concluded from the
evidence presented that Elena's "participation with the Division
was marked with non-compliance, no progress and incarceration."
The boys' progress under the care of their paternal uncle and
his wife, with whom they had been residing since their removal in
August 2013, was a factor considered by the judge, and which
supported Dr. Miller's opinion that, in the judge's words,
"removing the children from the resource family would hinder the
children's noticeable improvement and adversely affect their
welfare." The judge balanced that progress and the parents'
"continued issues"; we agree with his conclusion that there was
clear and convincing proof the second prong was met.
The court, in considering evidence related to the third prong,
noted both parents refused or failed to comply with the plethora
of court-ordered services offered to both parents by the Division.
He also reviewed the Division's consideration of familial options,
7 A-2856-15T4
all of which were ruled out. The court found the best option was
the one originally found by the Division: the boys' uncle who,
with his wife, expressed his willingness to adopt the boys. We
agree that there was clear and convincing evidence related to the
third prong.
In considering the fourth prong, the judge acknowledged that
it "serves as the final fail-safe against termination even where
the remaining standards have been met." N.J. Div. of Youth &
Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The judge weighed
Noah's testimony – Elena did not take the stand – but concluded
that nothing presented by him or on behalf of Elena "can surmount
the overwhelming evidence that the best interest of the children
demand termination." That "overwhelming evidence" was detailed
by the judge and included the parents' failure to comply with the
early recommendations made by Dr. Miller and the services provided
by the Division that could have led to reunification. He also
took note of the bond between the boys and their uncle and his
wife as reported by Dr. Miller after he observed interactions
among them. The court also considered the doctor's evaluations
of Noah and Elena.
Contrary to Noah's argument that the judge "abdicated" his
duty to make a best interest determination regarding the children,
and "cut[] and paste[d]" Dr. Miller's opinions, the court evaluated
8 A-2856-15T4
the testimony of all three witnesses and made specific findings
regarding each of their testimony. He recognized the many
recommendations and observations made by Dr. Miller, but it is
clear the court made its own findings from all the evidence,
including the uncontroverted expert opinions rendered by the
doctor.
The determination of "whether, after considering and
balancing the two relationships, the child will suffer a greater
harm from the termination of ties with her natural parents than
from the permanent disruption of her relationship with her foster
[or resource] parents," K.H.O., supra, 161 N.J. at 355, "is an
expert judgment." In re Guardianship of J.N.H., 172 N.J. 440, 478
(2002). Bonding evaluations play an important role in this regard.
In re Guardianship of J.C., 129 N.J. 1, 19 (1992). Psychologists
and psychiatrists who perform the evaluations play a "critical
role in reaching an ultimate decision in termination cases . . .
." Id. at 22.
The parties stipulated Dr. Miller was qualified as an expert
in psychology and bonding. The judge particularly noted, "Dr.
Miller has appeared many times in [his] courtroom and qualified
in every instance as an expert." The judge found the doctor's
"opinions were not disproved" and that his "conclusions were
9 A-2856-15T4
reasonable and logical." He utilized the evidence presented by
the doctor; he did not simply adopt it.
Dr. Miller's testimony raised interrelated issues we find
were important to consider in determining whether termination
would do more harm than good. He found the boys were bonded to
each of their parents. He opined the boys would have "a
significant emotional reaction" if they perceived they would never
see their parents again if termination was ordered, and that it
would "probably not be good" if they were barred forever from
having contact with their parents. Dr. Miller said it was
improbable that the resource family – the boys' uncle and aunt –
would prevent any contact between the boys and their natural
parents. Contrary evidence, however, was presented. A "contact
sheet"4 prepared by Division caseworker, Ashley Glover, who
testified at trial, related the boys' uncle's statement to her
that he would "not allow the parents in [the boys'] lives" if he
adopted them. He would allow the boys to have a relationship with
their parents only after they turned eighteen-years-old.
4
The contact sheet was part of P-118, admitted in evidence on
December 2, 2015 (defendants' joint appendix incorrectly indicates
it was admitted on November 9, 2015). The record is not clear if
the judge considered the contact sheet as evidence or if he found
reason to exclude it; he told the attorneys he would disregard
"objectionable hearsay" when he admitted a large number of contact
sheets.
10 A-2856-15T4
We find it necessary to remand this case for the judge to
consider this and any other related evidence in the existing
record, found pertinent and admissible, in determining whether
termination would do more harm than good. We direct that the
judge supplement his findings and conclusions, including any
ruling on the admissibility of evidence. We note that the contact
sheets contain embedded hearsay, including the uncle's statement
to the caseworker about his intention to prevent the boys from
seeing their natural parents.5 We leave it to the trial judge to
determine whether or to what extent he may require additional
testimony, evidence or argument to determine the admissibility or
weight of such evidence; of course, any ruling and the basis
therefor should be set forth in the record. See Konop v. Rosen,
425 N.J. Super. 391, 402 (App. Div. 2012) (holding the basis for
admission of each hearsay-within-hearsay statement must be
separately considered).
The court's amplified decision shall be completed within
thirty days. We retain jurisdiction.
5
New Jersey Rule of Evidence 805 provides: "A statement within
the scope of an exception to Rule 802 shall not be inadmissible
on the ground that it includes a statement made by another
declarant which is offered to prove the truth of its contents if
the included statement itself meets the requirements of an
exception to Rule 802."
11 A-2856-15T4