DCPP VS. K.M.R., C.S., AND K.F., IN THE MATTER OF THE GUARDIANSHIP OF K.J.R., K.B.R., K.M.R.-S., AND K.K.R.-S. (FG-07-0042-18, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-4651-17T2
A-4692-17T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
K.M.R. and C.S.,
Defendants-Appellants,
and
K.F.,
Defendant.
______________________________
IN THE MATTER OF THE
GUARDIANSHIP OF K.J.R.,
K.B.R., K.M.R.-S., and K.K.R.-S.,
Minors.
______________________________
Submitted May 6, 2019 – Decided June 17, 2019
Before Judges Gooden Brown and Rose.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0042-18.
Joseph E. Krakora, Public Defender, attorney for
appellant K.M.R. (Gilbert G. Miller, Designated
Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant C.S. (Steven Edward Miklosey, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Merav Lichtenstein, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Danielle Ruiz, Designated
Counsel, on the brief).
PER CURIAM
In these consolidated appeals, defendants K.M.R.1 (the mother) and C.S.
(the father) appeal from the May 29, 2018 judgment of guardianship terminating
their parental rights. The judgment terminated the mother's parental rights to
her two sons, K.J.R. and K.B.R., and her two daughters, K.M.R.-S. and K.K.R.-
1
Pursuant to Rule 1:38-3(d)(12), we use initials to protect the confidentiality
of the participants in these proceedings.
A-4651-17T2
2
S., and terminated the father's parental rights to K.M.R.-S., the only child they
had together.2 Defendants were never married. When the judgment was entered,
K.J.R. was eight years old, K.B.R. was six years old, K.M.R.-S. was three years
old, and K.K.R.-S. was one year old.
The mother contends that the Division failed to prove all four prongs of
the best interests standard embodied in N.J.S.A. 30:4C-15.1(a) by clear and
convincing evidence. She asserts that the trial court's contrary ruling "was not
supported by substantial and credible evidence in the record and in any event
was so wide of the mark that a mistake must have been made." The father
challenges the Division's proofs for prongs three and four only. He asserts "the
record does not support the legal conclusion that [the Division] . . . undertook
reasonable efforts to provide [him] with . . . visitation[,]" and "[t]he trial court's
decision to suspend [his] visitation indefinitely . . . release[d] [the Division] of
its statutory obligation . . . without due consideration to any alternatives such as
2
Other than indicating that all her children had different fathers, the mother
refused to disclose the identity of the biological fathers of K.J.R. and K.K.R.-S,
and, despite extensive paternity testing, the Division of Child Protection and
Permanency (Division) was unable to ascertain their identities. Although K.F.,
the biological father of K.B.R., was aware of the litigation, he did not participate
in the guardianship proceedings in the trial court or on appeal. His parental
rights were also terminated by the trial court upon the Division's submission of
an affidavit documenting their unsuccessful efforts to locate or serve him. See
N.J.S.A. 30:4C-17(c).
A-4651-17T2
3
therapeutic visitation." He continues that "the trial court erred in holding that
[the Division] sought alternatives to termination of parental rights" when two
relatives he identified "were not fully assessed by the time of the guardianship
trial." The Law Guardian supported termination before the trial court and, on
appeal, joins the Division in urging us to reject defendants' arguments in their
entirety and affirm. Having considered the parties' arguments in light of the
record and applicable legal standards, we affirm.
N.J.S.A. 30:4C-15.1(a) requires the Division to petition for termination of
parental rights on the grounds of the "best interests of the child" if the following
standards are met:
(1) The child's safety, health, or development has been
or will continue to be endangered by the parental
relationship;
(2) The parent is unwilling or unable to eliminate the
harm facing the child or is unable or unwilling to
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm.
Such harm may include evidence that separating the
child from his resource family parents would cause
serious and enduring emotional or psychological harm
to the child;
(3) The [D]ivision has made reasonable efforts to
provide services to help the parent correct the
circumstances which led to the child's placement
outside the home and the court has considered
alternatives to termination of parental rights; and
A-4651-17T2
4
(4) Termination of parental rights will not do more
harm than good.
The four criteria "are not discrete and separate," but rather "relate to and overlap
with one another to provide a comprehensive standard that identifies a child's
best interests." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167
(2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-
07 (2007)).
On October 11, 2017, the Division filed a verified complaint to terminate
defendants' parental rights and award the Division guardianship of all four
children. We will not recite in detail the circumstances that led to the filing of
the guardianship complaint, which began with the emergency removal of the
children following the October 2, 2016 death of the mother's fifth child, M.M.,
an eight-year-old boy.3 The death was ruled a homicide for which both
defendants were charged and incarcerated, awaiting trial, and remained
incarcerated throughout the guardianship litigation.
Prior to her son's death, the mother had a long history with the Division
dating back to 2012, involving investigations for referrals alleging substance
abuse, inadequate supervision, neglect, excessive absenteeism from school, and
3
The child's biological father was not a party to the litigation.
A-4651-17T2
5
physical abuse. With one exception, the prior referrals were ruled "unfounded"
or "not established." See N.J.A.C. 3A:10-7.3. However, in 2015, when K.M.R.-
S.'s diagnosis for "failure to thrive" due to improper feeding was substantiated,
K.M.R.-S. was removed but subsequently reunified with the mother after she
completed services, which included undergoing individual psychotherapy,4
anger management counseling, 5 and substance abuse services, as well as
attending parenting classes. 6 Following the October 2, 2016 removal of all four
children, the Division was granted care, custody, and supervision pursuant to
4
The psychotherapeutic treatment was recommended after the mother
underwent a psychiatric evaluation, which disclosed that she suffered from
"mood d[y]sregulation disorder, unspecified bipolar disorder, unspecified
personality disorder, or another psychotic dimension." The diagnosis was based
on the mother's "problems with anger, impulse control, maladaptive personality
traits, and fixed delusions." After the FN litigation was terminated in August
2016, the mother's therapist indicated in a termination summary that the mother
terminated treatment "prematurely" before "address[ing] the parenting concerns
at the root of the referral."
5
Although the mother denied any anger management problems, she admitted
using physical discipline on the children in the past.
6
The father did not appear in the 2015 FN litigation involving his daughter's
failure to thrive, or make himself available for services. In fact, at the time, the
mother denied being in a relationship with him. However, during the Division's
investigation of a July 2016 allegation of physical abuse of M.M. by the mother,
which was subsequently ruled "not established," the father indicated during the
investigation that while he did not reside in the home, he assisted the mother in
caring for all the children.
A-4651-17T2
6
N.J.S.A. 9:6-8.21 and 30:4C-12, and the children were placed in resource
homes.
Judge David B. Katz conducted the three-day guardianship trial on non-
consecutive days from April 16 to May 4, 2018. At the trial, in addition to the
admission into evidence of numerous documentary exhibits, Division
caseworker Mikael7 Williams testified about the Division's extensive history and
involvement with the family. She recounted the Division's efforts to provide
services to defendants, including visitation. She explained that the mother was
not afforded visitation with her sons by court order based on a November 18,
2016 Regional Diagnostic and Treatment Center (RDTC) evaluation
recommending "substantial caution" in facilitating visitation "due to the trauma
that [the boys had] experienced" from "witness[ing] certain events that led to
the death of their brother." The mother was, however, afforded monthly
supervised visits with her daughters at the Essex County Jail. On the other hand,
although the father had requested visitation with his daughter, visitation was
suspended based on a March 24, 2017 bonding evaluation, recommending
against visitation.
7
The witness' name appears alternately as Micole in the record.
A-4651-17T2
7
Other than visitation, Williams further testified that defendants
"request[ed] no services or contact by the Division," and refused to undergo the
psychological evaluations offered by the Division in order to determine
appropriate "services to try to better improve [their] case outcomes." However,
while the mother "completed a parenting class and a women empowerment
program" provided by the Essex County Jail, Williams testified that the father
"received [no] services" and spent time in protective custody at the jail.
Williams also detailed the Division's assessment of placement options for
the children. She testified that the mother's refusal to disclose the identity of
K.J.R.'s and K.K.R.-S.'s biological fathers prevented the Division from
"assess[ing] possible relatives" to "care for the children." However, at the
mother's request, the Division assessed four individuals, S.J., S.C., L.H., and
L.M. S.J., K.F.'s girlfriend, was ruled out because she "resided with [K.B.R.'s
father]," S.C., a maternal cousin, and L.M., a relative of K.F., were ruled out
because there was "insufficient . . . space in [their respective] home[s]," and
L.H., a family friend, was "ruled . . . out on best interests" grounds because she
was friendly with and resided "in the same building as [the mother's mother ,]"
who had "prior substantiations" with the Division as well as "a criminal history."
A-4651-17T2
8
In addition, Williams testified that the father identified his three sisters
for placement of his daughter: D.U., Gl.U., and Ga.U. However, Gl.U. was ruled
out because "she had two . . . active cases" with the Division, D.U. was ruled
out because she failed to attend "a drug treatment program" recommended by
the Division, and Ga.U. "moved to Pennsylvania" and failed to contact Williams
as requested in order for the Division to conduct an assessment. According to
Williams, none of the rule-out determinations were appealed and none of the
individuals requested reconsideration.
Williams also testified about the children's special needs and the mother's
"resistan[ce]" to the children receiving the medical care needed. Williams
explained that the boys "have an umbilical hernia," vision problems, and were
both "diagnosed with ADHD." K.M.R.-S. had "a speech delay" and an
overgrowth of her left eye. K.K.R.-S. "was diagnosed with cerebral palsy" and
ischemia, "a rare birth defect[,]" and had a variety of developmental delays.
According to Williams, all the children received individualized therapy, and
K.M.R.-S. underwent eye surgery. K.K.R.-S. also underwent eye surgery as
well as several MRIs because of her extensive medical issues.
Williams further testified that the children's current caretakers were
providing the children with "good care" and were meeting all their needs ,
A-4651-17T2
9
including facilitating regular sibling visits. Williams confirmed that the
Division's plan for the children was adoption. She explained that while K.M.R.-
S.'s resource parent was committed to adoption, the resource parents of the other
children had not yet made a commitment. 8 In the event the resource parents
decided against adoption, then the Division's plan would be "select home
adoption"9 for the three remaining children. After explaining the process for
"select home adoption," Williams indicated she had no concerns about the
Division's ability to find an adoptive home for the children because "they [were]
still young[,]" had not "had a lot of placements[,]" and were "great kids."
Division expert Elizabeth Groisser, Ph.D., a psychologist, testified about
the March 24, 2017 bonding evaluation she conducted at the Essex County Jail
between the mother and her two daughters, and between the father and K.M.R.-
S. As a result of those evaluations, Groisser opined there was "no bond"
between K.M.R.-S. and her father, and, based on K.M.R.-S.'s "intense anxiety"
8
Williams explained that the boys were placed together and have been in the
same resource home since their removal in October 2016. While the girls were
initially placed together, they were separated in October 2017 when they were
removed from the resource home after K.K.R.-S. sustained a fractured tibia.
Thereafter, K.M.R.-S. and K.K.R.-S. were placed in different resource homes.
9
Select home adoption refers to "a process that includes looking for an adoptive
home in New Jersey and registering the child[ren] on the national adoption
exchange." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 98 (2008).
A-4651-17T2
10
during the visit, recommended that visitation be discontinued, whether
therapeutic or not, because of the "psychological harm in terms of the distress
and anxiety" suffered by K.M.R.-S. Regarding the mother, because Groisser
found that the bond between K.M.R.-S. and her mother was "ambivalent," and
that "there was no real bond on the part of [K.K.R.-S.] to her mother[,]" Groisser
recommended that continued visitation should be monitored for signs of
psychological distress. Groisser also opined, however, that discontinuing
visitation with the mother would not harm the girls.
We incorporate by reference the extensive factual findings and sound legal
conclusions in Judge Katz' May 29, 2018 oral opinion, rendered following the
guardianship trial, and only recite Judge Katz' key findings supporting his
decision. Preliminarily, "[b]ased on her overall demeanor and the substance of
her testimony," the judge found Williams "credible" and "trustworthy[,]"
explaining that "[s]he testified in a straightforward, direct manner[,]" and "was
not impeached." Likewise, the judge "credit[ed] Dr. Groisser's testimony[,]"
explaining that "[s]he testified in a professional manner," and that her testimony
was "complete, thorough, . . . comprehensive[,]" and unrebutted.
Next, the judge recounted the mother's extensive history with the
Division, and detailed the children's previously "unaddressed medical
A-4651-17T2
11
conditions" and "special needs" that were only detected, diagnosed, and treated
through the Division's efforts. The judge expounded on the October 2, 2016
referral that led to the removal and guardianship litigation. The judge explained
that "[t]he referral was from University Hospital paramedics, who had been
dispatched to [the] family home at 9:30 a.m.," following the mother's report that
her eight-year-old son had a "seizure in the bathtub." "However, when the
paramedics arrived, [the child] was fully clothed and dry[,]" and "in cardiac
arrest." In addition, "[h]e was not breathing, and . . . had no pulse." He "was
pronounced dead at University Hospital" later that morning.
The judge stated that the "death was reported as suspicious[,]" and
Division "workers were informed that [the child] arrived at the hospital with
several injuries that appeared to be very recent." "The hospital also noted that
[the child] did not have any history of seizures or heart conditions." The judge
noted that the autopsy report revealed
blunt impact injuries. Contusions of the heart, lung[s],
and thymus. Contusions of the [mediastinal] soft
tissue[s and] aorta. Aspirated blood in both lungs.
Blood[y] effusion in both pleura[l] . . . cavities.
Contusions of the scalp. Contusions and abrasions of
the lips. Contusions and abrasion[s] of extremities and
the buttock. Contusions of the . . . abdominal wall. As
well as scalding of [the] lower extremities.
A-4651-17T2
12
According to the judge, the Division investigator reported that upon being
informed of her son's demise, the mother's "demeanor" was "distasteful and
unremorseful." She "was more concerned" about being "misinformed" about the
length of time she would be "detained" at the Prosecutor's Office than "the loss
of her son." Although she denied the father was living in her home at the time,
she acknowledged he assisted her in removing her son from "the tub and
dress[ing] him before [the paramedics] arrived, because she was, '[c]oncerned
about him being naked.'" She also "denied knowing anything about most of
[the] bruises and marks, but . . . did acknowledge the bruise on the stomach
[from] earlier that day." Additionally, she "denied ever hitting [her son] with
an object," but acknowledged being "home all morning with her children."
The judge continued that both K.J.R. and K.B.R. made statements to
investigators and to the RDTC evaluator, implicating defendants in their
brother's death. On October 2, 2016, K.J.R., who was then "a few weeks short
of his seventh birthday," told investigators that the father "punched [his brother]
twice in the stomach," and made his brother "put his head in the water[,]" as a
result of which his brother "pee[d] in the bathtub[,]" "[h]is [brother's] heart was
[not] beating anymore[,]" and his brother "was at his grave." K.B.R., "who was
A-4651-17T2
13
ten days shy of his fifth birthday," told investigators on October 2, 2016, that
the father "put [his brother] in the tub and burned his leg."
"A little over three weeks later," on October 27, 2016, when the boys
underwent psychosocial evaluations at the RDTC, K.J.R. reiterated that the
father "punched [his brother] in the chest," that "[h]is brother . . . was punished
bad[,]" and that the father "was lying." K.J.R. also stated that the mother "told
[him there was] a ghost . . . in the room with [his brother,]" in an apparent
attempt to explain the screams K.J.R. heard coming from his brother. Similarly,
K.B.R. told the RDTC evaluator that his brother was dead because the father
"punched [his brother] in the chest," and "put [him] in the tub." According to
K.B.R., "'[t]he water was hot and [his brother] was crying.'" K.B.R. also stated
that after his brother was placed in the tub, the mother "put [his brother's] head
in the water." K.B.R. said his "[brother's] nose was bleeding" and that his
brother "[d]ied out." K.B.R. "stated that he, too, was scared of ghosts."
Judge Katz stated that the RDTC evaluator determined that both boys
"displayed signs of trauma and post[-]traumatic stress disorder." As a result, the
evaluator recommended no "contact between [the boys and the father] and that
there be significant caution regarding any contact between [the boys and the
A-4651-17T2
14
mother.]" In addition, "[b]oth boys were referred for trauma focused therapy
services," which began in March 2017 and has continued since.
In discussing the services provided to defendants by the Division, the
judge pointed out that defendants "have both remained incarcerated throughout
this litigation[,]" and initially "requested the Division not contact them, until
further [c]ourt order." Defendants also "declined to participate in any
psychological evaluation[s]." A December 8, 2016 order "allow[ed] the
Division to send . . . periodic photos of the children to their respective parents[,]"
and that practice "has continued throughout the litigation." According to the
judge, although defendants were ordered to keep the Division apprised of any
services received at the jail, there was no record or indication that the father "has
participated in any services while being incarcerated." On the other hand, the
mother completed a parenting class.
Judge Katz explained that defendants' requests for visitation were initially
denied pending receipt of the children's evaluations. Upon receipt of the RDTC
evaluation, on December 8, 2016, the court suspended visitation between the
mother and the boys. However, the court "granted [the mother] monthly
visitation with [the girls], supervised by both the Division caseworker and a jail
social worker[,]" based on Dr. Groisser's recommendation that any visits "should
A-4651-17T2
15
be monthly, and with the Division monitoring for any psychological regression
or distress." Regarding the father, on May 11, 2017, the court suspended
visitation with K.M.R.-S. based on Dr. Groisser's recommendation that ongoing
visits "only provided [the father] with the opportunity to see his daughter, and
would be detrimental to the child psychologically."
Crediting Dr. Groisser's unrebutted opinions based on the March 24, 2017
bonding evaluations, the judge determined that there was no bond between the
father and K.M.R.-S. and "continued visits with [the father] could actually cause
the child harm." As to the mother, the judge accepted Dr. Groisser's opinion
that while K.K.R.-S. did not "appear to be in distress, there was no evidence of
an attachment between her and [the mother,]" and the bond between K.M.R.-S.
and the mother was "ambivalent." Thus, relying on Dr. Groisser's opinion, the
judge acknowledged that the girls would not be harmed "if [they] did not see
[the mother]."
The judge also discussed the Division's efforts to find permanent homes
for the children. He explained that the Division had assessed for placement
several individuals identified by defendants, "all of whom have been ruled out."
The judge further indicated that the children's special needs were currently being
met by the resource parents, with the Division's support. The judge
A-4651-17T2
16
acknowledged that with the exception of K.M.R.-S.'s resource parent, none of
the other resource parents had made commitments to adopt the children.
However, the judge credited Williams' testimony that once the children were
freed for adoption, there were "no concerns about the children being adopted"
through "the process [of] select home adoption," given the children's age,
placement history, and the fact that they were "'great kids.'"
After reciting his factual findings, the judge applied the appropriate legal
principles and concluded that the Division "satisfied each prong of the best
interest[s] standard by clear and convincing evidence." First, the judge
determined that the father's actions, which led to the brother's death while the
other children were in the home, and the mother's failure to protect the children
from the father, who, by his own admission, "assisted with the care of the
children," satisfied the first prong. See In re Guardianship of K.L.F., 129 N.J.
32, 43-44 (1992) ("[I]njury to children need not be physical to give rise to State
termination of biological parent-child relationships. Serious and lasting
emotional or psychological harm to children as the result of the action or
inaction of their biological parents can constitute injury sufficient to authorize
the termination of parental rights.").
The judge elaborated:
A-4651-17T2
17
[The father's] abuse of [the brother] occurred in
the home while all four children were present. The
boys . . . call him daddy, even though he[] [is] not the
biological father of them. His actions, in their
presence, the screaming, the crying, the resulting
trauma to the children, demonstrate that [the father] has
endanger[ed] the safety, health, and development of all
the children, including [K.M.R.-S.], by his actions, on
October 2, 2016.
Similarly, [the mother] . . . has participated, both
directly and indirectly, in causing the child[ren's]
safety, health, and development to be endangered.
First, she was in the home and failed, at a
minimum, to intervene to protect the children. Second,
[K.B.R.] stated that [the mother] put [his brother's]
head in the water. Third, while the abuse was . . .
occurring, and [the brother] was screaming in his room,
[the mother] attempted to justify or explain it by telling
[K.J.R.] that there was a ghost in [their brother's] room,
as if the ghost was causing injury to [their brother].
See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289 (2007) ("A
parent is unfit if he or she is unable or unwilling to prevent harm to the child
irrespective of the source of the harm[,]" and "[c]onsequently, a parent's
association with third-parties may be an appropriate consideration if those
associations harm the child.").
The judge referred to the autopsy report, admitted into evidence without
objection, detailing the brother's extensive injuries, and indicated that the boys'
statements implicating defendants in the death of their brother provided
A-4651-17T2
18
compelling proof to satisfy prong one. Although the children's statements were
admitted without objection, the judge acknowledged that the statements were
hearsay that were not admissible in a guardianship trial under N.J.S.A. 9:6-
8.46(a)(4) pursuant to New Jersey Division of Child Protection and Permanency
v. T.U.B., 450 N.J. Super. 210, 214 (App. Div. 2017). However, according to
the judge, the statements qualified under the excited utterance exception to the
hearsay rule, Rule 803(c)(2), notwithstanding the fact that the statements were
not all contemporaneous with the startling event. N.J.R.E. 803 (c)(2); see State
v. Long, 173 N.J. 138, 159-60 (2002) (holding that "even a somewhat lengthy
delay will not always prevent a statement from being admissible under Rule
803(c)(2)" because the Rule focuses instead "on whether nervous excitement
was generated, whether there was a reasonable proximity in time between the
event and the declarant's subsequent description of it, and whether there was a
lack of opportunity to deliberate or fabricate the circumstances").
The judge determined "[i]t [was] clear from the surrounding
circumstances" that the boys were "under the stress of their brother's death" and
"[t]here certainly was no opportunity . . . to fabricate or deliberate" when they
made the "statements on the same day as the tragic death of [their brother]" as
well as "three weeks later to the [RDTC] evaluator[.]" The judge noted that
A-4651-17T2
19
during the RDTC evaluation, "[K.J.R.] became withdrawn when speaking about
his brother[,]" "[p]ut his head down on the [evaluator's] desk, . . . had a
significant depressed mood, and avoided questions about [his brother]." K.B.R.
also "became withdrawn" when discussing his brother and "spontaneously
replied, '[his brother] dead'" when "asked who he lived with[.]" Thus, the judge
found that the statements were sufficiently trustworthy to be admitted under
Rule 803(c)(2).
Turning to prong two, the judge found that "[t]he Division ha[d] shown
clearly and convincingly" that defendants were "unwilling or unable to limit the
harm facing [the children]." According to the judge, defendants "have been
incarcerated throughout the litigation," "have refused to comply with Division
services since the beginning of th[e] litigation[,]" specifically "declining to . . .
participate in psychological evaluations," which as Williams testified, "were for
the purpose[] of determining recommended services."10 Further, while the
10
We do not deem the judge's reliance on defendants' refusal to undergo
psychological evaluations to determine appropriate services as violating
defendants' Fifth Amendment rights against self-incrimination. In that regard,
we distinguish these circumstances from those in New Jersey Division of Child
Protection and Permanency v. S.K., 456 N.J. Super. 245, 251 (App. Div. 2018),
where we held that a judge "may not draw an adverse inference of culpability
against a defendant who invokes his right against self-incrimination to refuse to
testify at a Title 9 fact-finding hearing." We determined that under those
A-4651-17T2
20
mother "participated in parenting classes[,]" the father had not provided any
evidence of his "participation [in] services in the jail, despite [being]
encourage[d to] . . . do so[,]" and despite being "released from protective
custody" "since about August 2017[.]"
Additionally, neither defendant had "provided any indication that they[]
[were] going to be released from incarceration in the foreseeable future[,]"
"[n]or ha[d] they indicated they would be in any position to parent their children
upon their release." According to the judge, this was of particular concern
because all four children have special needs, leading the judge to conclude "that
delaying permanency conditionally upon [defendants'] . . . unspecified release,
at some point in the future, would only exasperate the significant emotional
trauma they have suffered." See N.J. Div. of Youth & Family Servs. v. L.J.D.,
428 N.J. Super. 451, 483-84 (App. Div. 2012) ("[C]hildren must not languish
indefinitely in foster care while a birth parent attempts to correct the conditions
that resulted in an out-of-home placement[,]" and "[a]ccordingly, 'expeditious,
permanent placement' is favored over 'protracted efforts for reunification'" (third
alteration in original) (first quoting N.J. Div. of Youth & Family Servs. v. S.F.,
circumstances, a "defendant's decision to refuse to testify was constitutionally
protected under the Fifth Amendment . . . and [Rule] 503." Id. at 274.
A-4651-17T2
21
392 N.J. Super. 201, 210 (App. Div. 2007); and then quoting N.J. Div. of Youth
& Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004))).
Turning to prong three, the judge determined that the Division's efforts to
provide services to the family dated back to the 2015 substantiated failure to
thrive allegation, and the Division "continued to exert reasonable efforts [to]
provide services to [defendants] while they remain[ed] incarcerated." See N.J.
Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 579, 621 (App. Div.
2007) ("We have recognized 'the difficulty and likely futility of providing
services to a person in custody'" (quoting N.J. Div. of Youth & Family Servs. v.
S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006))). However, defendants
declined the "psychological evaluations to determine the need for additional
services on May 11, 2017[,]" and, "[a]t the time of the initial filing on October
[4], 2016," requested "that the Division not contact them[,]" other than providing
"periodic photos of the children, and keep[ing] them updated as to events[,]" a
practice the Division "continued throughout the litigation." See In re
Guardianship of D.M.H., 161 N.J. 365, 393 (1999) ("The diligence of [the
Division's] efforts on behalf of a parent is not measured by their success" but
"must be assessed against the standard of adequacy in light of all the
circumstances of a given case.").
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Specifically addressing visitation, the judge noted that "the Division ha[d]
expended considerable efforts to provide visitation for [defendants,]" including
arranging the RDTC evaluations for the boys and the bonding evaluations for
the girls. As a result of these evaluations, "the [c]ourt determined that visitation
was no[t] appropriate for either of the boys." Further, "while [the father's]
visitation with [K.M.R.-S.] was suspended" based on Dr. Groisser's opinion
"that the visits were harmful to the child[,]" the mother was, in fact, afforded
"monthly supervised visitation." Continuing his analysis of prong three, the
judge discussed the Division's efforts in assessing "resources for the placement
of the children[,]" all of whom were appropriately "ruled out as viable
caregivers." See F.H., 389 N.J. Super. at 621 ("Even if the Division had been
deficient in the services offered . . . , reversal would still not be warranted,
because the best interests of the child controls.").
Turning to prong four, the judge acknowledged that because this was
predominantly "a select home adoption case[,]" "the question before the [c]ourt
. . . [was] whether the harm suffered by the child[ren] outweigh[ed] the benefit
of . . . having the child[ren] free for . . . adoption." The judge concluded that
"the harm [did] not outweigh the [benefit] of freeing the child[ren]" for adoption
because the Division demonstrated by clear and convincing evidence "that all
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23
four children would greatly benefit from the termination of . . . the biological
parent[s'] rights and the pursuit of permanency through adoption."
In making this determination, the judge pointed to the "significant special
needs" of the children, all of which were now "being met with the support of the
Division and their respective resource families[,]" as well as the fact that "there[]
[was] no realistic likelihood defendants would be able to safe[l]y and
appropriately care for the children in the foreseeable future" given their
"incarcerat[ion] with no anticipated release dates" and their rejection of
"Division-offered services." Relying on New Jersey Division of Youth and
Family Services v. R.G., 217 N.J. 527, 555 (2014), the judge acknowledged that
"incarceration alone, without particularized evidence [of] how a parent's
incarceration affects each prong, [was] an insufficient basis for terminating
parental rights." Instead, "[t]he [c]ourt ha[d] to look at the nature of the
underlying crime[] giving rise to the incarceration" insomuch as it was
"relevant" to parental unfitness. According to the judge, "here, the underlying
crimes [were] aggravated manslaughter, and endangering the welfare of a
child[,]" both crimes which "directly bear on parental unfitness."
The judge noted further that "the relationship" between "the parents and
the child[ren] before they were incarcerated" was another factor "to be
A-4651-17T2
24
considered[.]" In that regard, based on "Dr. Groisser's unrebutted testimony,"
the judge found that the girls had "very little, if any, relationship wit h the
parents." In fact, K.M.R.-S. would be harmed by contact with the father and
had an "ambivalent" relationship with the mother. As to K.K.R.-S., the judge
stressed "there was no attachment between her and [the mother]." Likewise,
based on the RDTC evaluations, the judge reiterated that contact with defendants
was not in the boys' best interests and would jeopardize their "well-being." The
judge was "also satisfied that the children [would] be adopted" based on
Williams' confidence that the Division would be able to "find forever homes for
the[] children" through select home adoption. See N.J. Div. of Youth & Family
Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996) (explaining that
some termination actions are not predicated upon a comparative bonding
analysis, but rather reflect the child's "need for permanency" and the parent's
"inability to care for [the child] in the foreseeable future").
Thus, according to the judge, there was "extensive evidence that
terminating defendant[s'] parental rights will not do more harm than good."
"Rather, the good in permanency far outweigh[ed] the harm." See In re
Guardianship of K.H.O., 161 N.J. 337, 357 (1999) ("In all our guardianship and
adoption cases, the child's need for permanency and stability emerges as a
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25
central factor."). The judge entered a memorializing order terminating
defendants' parental rights and these appeals followed.
Our scope of review on appeals from orders terminating parental rights is
limited. In such cases, we will generally uphold the trial court's findings, so
long as they are supported by "adequate, substantial, and credible evidence."
R.G., 217 N.J. at 552. Indeed, we must give substantial deference to the family
court judge's special expertise and opportunity to have observed the witnesses
firsthand and evaluate their credibility. Id. at 552-53. Thus, a termination
decision should only be reversed or altered on appeal if the trial court's findings
are "so wholly unsupportable as to result in a denial of justice." N.J. Div. of
Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re
Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Even where the parents
allege "error in the trial judge's evaluation of the underlying facts and the
implications to be drawn therefrom," deference must be afforded unless the
judge "went so wide of the mark that a mistake must have been made." M.M.,
189 N.J. at 279 (first quoting In re Guardianship of J.T., 269 N.J. Super. 172,
189 (App. Div. 1993); and then quoting C.B. Snyder Realty, Inc. v. BMW of N.
Am. Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)).
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26
Guided by these standards, we conclude that Judge Katz' factual findings
are amply supported by the credible evidence in the record, and his legal
conclusions are unassailable. "It is not our place to second-guess or substitute
our judgment for that of the family court, provided that the record contains
substantial and credible evidence to support the decision to terminate parental
rights." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49
(2012). Here, the judge carefully reviewed the evidence presented at trial, made
copious findings as to each prong of N.J.S.A. 30:4C-15.1(a), and concluded that
the Division met, by clear and convincing evidence, all of the legal requirements
for a judgment of guardianship. The judge's opinion tracks the statutory
requirements of N.J.S.A. 30:4C-15.1(a) and comports with applicable case law.
See, e.g., F.M., 211 N.J. at 447-54; E.P., 196 N.J. at 103-07; K.H.O., 161 N.J.
at 347-63; D.M.H., 161 N.J. at 375-93; N.J. Div. of Youth & Family Servs. v.
A.W., 103 N.J. 591, 604-11 (1986). We thus affirm substantially for the reasons
Judge Katz expressed in his comprehensive and well-reasoned oral opinion.
Affirmed.
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