DCPP VS. D v. A.B.-L., AND G.O., IN THE MATTER OF THE GUARDIANSHIP OF J v. J.L. v. K.L. v. AND B.L. v. (FN-07-0344-16 AND FG-07-0181-17, 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NOT FOR PUBLICATION WITHOUT THE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-3769-16T1
A-3770-16T1
A-2432-17T1
A-2434-17T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
D.V. and A.B.-L.,
Defendants-Appellants,
and
G.O.,
Defendant.
IN THE MATTER OF THE
GUARDIANSHIP OF J.V.,
J.L.-V., K.L.-V. and B.L.-V.,
Minors.
Submitted September 24, 2019 – Decided November 6, 2019
Before Judges Fisher, Accurso and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket Nos. FN-07-0344-16 and FG-07-0181-17.
Joseph E. Krakora, Public Defender, attorney for
appellant D.V. (Robyn A. Veasey, Deputy Public
Defender, of counsel; Jennifer M. Kurtz, Designated
Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for
appellant A.B.-L. (Ifeoma Antonia Odunlami,
Designated Counsel, on the briefs in A-3770-16; Mark
Edward Kleiman, Designated Counsel, on the briefs in
A-2434-17).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason Wade Rockwell, Assistant Attorney
General, of counsel; Roman Guzik, Deputy Attorney
General, on the briefs in A-3769-16 and A-3770-16;
Casey Jonathan Woodruff, Deputy Attorney General,
on the briefs in A-2432-17 and A-2434-17).
Joseph E. Krakora, Public Defender, attorney for
minors (Meredith Alexis Pollock, Deputy Public
Defender, of counsel; Todd S. Wilson, Designated
Counsel, on the briefs).
PER CURIAM
D.V. (Donna) and A.B.-L. (Albert) appeal from a finding that they
abused and neglected then three-year-old J.V. (Jaden), two-year-old J.L.-V.
(Jamie), and two-month-old K.L.-V. (Katie) and from the subsequent
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termination of their parental rights to those children, as well as to B.L. -V.
(Becky) born after commencement of the guardianship action. 1 Having
consolidated the appeals for purposes of this opinion, we now affirm both
judgments, essentially for the reasons expressed by Judge Paganelli in his
thorough and well-reasoned opinions of November 30, 2016 and January 12,
2018.
The facts are fully set forth in Judge Paganelli's opinions and do not
require repeating here. We note only the essentials, that is that the family first
came to the attention of the Division in 2015, when Albert left Jaden and
Jamie alone when he went to the liquor store, and kicked Donna in the stomach
and back when they argued about it afterwards. She was then pregnant with
Katie. Albert denied striking Donna or being drunk when alleged to have done
it and refused to cooperate with the investigation. The Division closed its case
after Donna assured the investigator she was no longer living with Albert and
signed a family agreement promising she would not let him act as a caretaker
for the children in the future.
1
We employ fictitious names to protect the children's privacy. Although
Donna and Albert are the parents of the three youngest children, Jaden, the
eldest, is not Albert's son. Jaden's biological father did not participate in the
litigation in the trial court and is not a party to the appeal.
A-3769-16T1
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By early 2016, however, the couple was back together, and Donna was
working nights. When Donna left Albert to watch the children one night while
she worked, he broke eight of Katie's ribs, her femur and inflicted a serious
brain injury that left her hospitalized for a month and in a residential care
facility for the next twenty months.
At the fact-finding hearing in the subsequent abuse and neglect
proceeding, the Division admitted defendants' statements to the police about
Katie's injuries. Although both Donna and Albert initially denied that Albert
was alone with the children when Katie was hurt, they eventually admitted he
was watching all three children at the time. After suggesting several other
explanations for Katie's condition, Albert finally told police that Katie had
been restless, and Jaden and Jamie were jumping around and screaming as he
tried to soothe the baby by rocking her. When Katie wouldn't stop crying, and
the older children wouldn't settle down, he became upset and desperate and
started rocking Katie harder and squeezing her tighter. As the situation wore
on, he grew tense and started shaking Katie until she finally stopped crying a
few minutes later.
Donna told police that when she got home, after 3:30 a.m., Jaden, who
was "non-verbal," said "dad," gesturing to Albert, and made a shaking motion
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with his hands. The next morning, Katie's eyes were rolled back in her head
and she was clenching and unclenching her fists. Donna suggested taking her
to the hospital but Albert resisted. Although both Donna and Albert had
previously witnessed Jaden having a seizure, they delayed taking Katie to the
hospital for well over a day. When they finally took Katie to the emergency
room, her eyes were turning in circles and the doctors could not control her
seizures.
Judge Paganelli accepted the testimony of the Division's expert, the
medical director of the Metro Regional Diagnostic and Treatment Center, Dr.
Weiner, board certified in pediatrics and child abuse pediatrics, who examined
Katie and consulted with her treating doctors. She opined the child's injuries
likely resulted from a single episode of forceful shaking, either from the
shaking itself or, in the case of the rib fractures, from squeezing, and that
defendants medically neglected Katie by failing to take her to the hospital
sooner.
The judge rejected the opinion of defendants' pediatric neurologist that
the rocking and shaking Albert described would not have caused the extent of
Katie's brain injury, and was thus likely merely coincidental to meningitis,
encephalitis, or cortical venous thrombosis. Judge Paganelli noted none of
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Katie's doctors had diagnosed her with any of those conditions, and they were
not apparent in the child's lab work. Defendant's neurologist had also not
examined Katie, nor consulted with her treating doctors and did not believe
abusive head trauma was a legitimate diagnosis, despite its recognition by the
American Academy of Pediatrics.
Defendants' pediatric radiologist agreed with the Division's expert that
the injuries to Katie's chest and ribs were likely caused by compression of her
rib cage, but he concluded the injuries were more likely caused by "rough
handling" rather than forcible shaking. Although Judge Paganelli found the
radiologist's testimony as to the nature of Katie's injuries generally credible, he
rejected his conclusion that they resulted from rough handling as inconsistent
with Albert's description of events.
Having given the parties advance notice in accordance with New Jersey
Division of Youth and Family Services v. R.D., 207 N.J. 88, 120 (2011), that
he would make his findings pursuant to the higher Title Thirty "clear and
convincing" standard if supported by the proofs, Judge Paganelli found the
Division proved by clear and convincing evidence that defendants had abused
and neglected all three children.
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Specifically, the judge found inadequate supervision by both Donna and
Albert based on admissions in their statements to the police that they
occasionally left all three children alone in order to take out the trash or buy
food when the two toddlers were asleep or watching television. The judge
noted the children were described by witnesses "as aggressive, fighting badly,
screaming, throwing things, fighting over the television, playing hard, jumping
on furniture," and often "needed to be separated." Although noting such
"behavior may be somewhat expected for children of this age group," the judge
found that fact, and that the children couldn't yet talk, "offers the very reason
why the children cannot be left unsupervised by their parents." The judge also
found Donna improperly supervised the children by leaving them alone with
Albert after acknowledging he was not an appropriate supervisor for the
children in the family agreement she entered into with the Division.
Judge Paganelli found Albert physically abused Katie by deliberately
causing her "extensive brain and retinal injuries" as well as bone fractures
based on Albert's admissions of squeezing and shaking Katie, the objective
proof of those injuries and Dr. Weiner's testimony that Albert's actions caused
Katie's injuries. The judge also found Albert exposed Jaden and Jamie to a
substantial risk of harm by physically abusing Katie while caring for the older
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children as witnessed by Jaden. The judge found both Donna and Albert
medically neglected Katie by their delay in getting her to the hospital after
seeing her eyes turned up and the abnormal clenching of her hands.
Judge Paganelli applied those clear and convincing findings, with the
exception of the "statement" attributed to Jaden of Albert shaking Katie, see
N.J. Div. of Child Prot. & Permanency v. T.U.B., 450 N.J. Super. 210, 213-14
(App. Div. 2017), to find the Division proved the first prong of the best
interests standard in the subsequent guardianship trial, that the children's
health and development has been endangered by the parental relationship. See
N.J.S.A. 30:4C-15.1(a)(1).
He found the Division proved the second prong as to Donna, that the
parent was unable or unwilling to eliminate the harm, N.J.S.A. 30:4C-
15.1(a)(2), based on the testimony of the Division's neuropsychologist, Dr.
Mack, that "there is an organic etiology to [Donna's] poor judgment" and
maladaptive behavioral patterns, including her inability to separate from Albert
because she claimed she "had no one else to help her," and still did "not know
if he ha[d] done anything wrong" with regard to Katie, despite overwhelming
proof of the injuries he caused the two-month-old. The judge also accepted
Dr. Mack's view that the prognosis for Donna becoming an independent
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minimally effective parent "is extremely poor based on her neuropsychological
and psychological makeup."
The judge found Albert was unwilling or unable to eliminate the harm he
posed to the children because he denied any responsibility for Katie's injuries
in his interview with the Division's psychologist, Dr. Dyer. Dr. Dyer reported
Albert claimed Katie's bones were not actually broken and that her injuries
may have been caused by a blood disorder or by restlessly moving around
excessively.
Judge Paganelli found the Division easily proved it had made reasonable
efforts to help Donna and Albert correct the circumstances leading to the
children's removal under the third prong, N.J.S.A. 30:4C-15.1(a)(3), although
Dr. Mack opined there were no services that could make either a minimally
effective parent in the foreseeable future, and found no alternatives to
termination of their parental rights.
As to the fourth prong, that termination not do more harm than good,
N.J.S.A. 30:4C-15.1(a)(4), the judge relied on the bonding evaluations
conducted by Dr. Dyer. Dr. Dyer found no bond between either Donna or
Albert and Katie and Becky as both had been removed from the care of their
parents at an extremely early age. Becky, only ten months old at the time of
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the evaluation, had never lived with them, and Katie was not yet three months
old when Albert injured her. Both children were in the care of families
wanting to adopt them, in Katie's case, a nurse who had cared for her during
her twenty months in a residential care facility.
Dr. Dyer concluded Katie's "emotional needs would be more adequately
addressed by a permanent caretaker other than her birth mother." As for
Becky, Dr. Dyer believed reunifying her with Donna before her first birthday
when an attachment to her resource parent would begin to develop would be
the best option, but only if Donna could separate from Albert and manage to
become a minimally fit parent within that timeframe.
The situation with Jaden and Jamie, who had been placed together, was
more complicated. Both children had an attachment to Donna, and Jamie was
also attached to Albert. Dr. Dyer found Jamie also had an attachment to her
resource parent. He opined that terminating Jamie's relationship with either
Donna or the resource father would likely cause her "a similarly distressing
loss," less with Albert, which the resource father would be able to mitigate, but
Donna, because of her psychological problems, would not.
Dr. Dyer found Jaden had also formed a "very close emotional tie" to his
resource father, who provided the child with "appropriate structure,
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nurturance, positive role modeling, physical safety, and emotional security,"
but that Donna remained Jaden's "central parental love object." Although Dr.
Dyer acknowledged that reunifying Jaden with Donna would confer some
therapeutic benefit, he noted Jaden did not receive adequate stimulation and
structure when he lived with defendants. He accordingly concluded that
reunification would likely cause Jaden to "suffer a regression in learning and
behavior due to [Donna's] persisting problems," adding that a failed
reunification would be an "absolute disaster" for the child. Termination of
Jaden's relationship with Donna, on the other hand, would likely have a
"disorganizing and distressing effect on [him] that runs the risk of inflicting
long-term or serious psychological harm," which Dr. Dyer believed Jaden's
resource father would be able to mitigate, but not eliminate completely.
Donna and Albert did not present an expert to counter those testifying on
behalf of the Division and did not offer any other witnesses. Neither testified.
Based on the bonding evaluations, Judge Paganelli found "clearly and
convincingly" that termination of Donna's and Albert's parental rights as to all
four children "will not do more harm than good." The judge noted that Dr.
Dyer's opinion that reunification with Donna should be considered for Becky
and Jaden was "tethered to [Donna] being able to extract herself from [Albert]
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and, more importantly, address her problems," neither of which the court
concluded was remotely likely. Concluding based on the expert testimony that
neither Donna nor Albert would ever likely become minimally fit parents, the
judge found "neither parent can offer the children the safe and stable
placement they deserve."
Defendants appeal, arguing the court erred in concluding they abused or
neglected Jaden, Jamie and Katie and that the Division failed to prove all four
prongs of the best interests standard by clear and convincing evidence. The
Law Guardian joins the Division in urging that we affirm both judgments.
We find defendants' various arguments, all of which are premised
entirely on alleged errors in the judge's fact finding, utterly without merit. 2
2
Although both defendants assert their statements to police were coerced and,
to that extent, unreliable, Donna adds that the neuropsychological condition
diagnosed by the Division's expert in the guardianship matter was particularly
relevant to a determination of the reliability of her statement. She further
contends she could not have litigated the issue in the abuse and neglect matter
because the evidence was not yet available, and was precluded from doing so
in the guardianship case based on collateral estoppel. We do not address this
argument, which she raises for the first time on appeal despite an adequate
opportunity to investigate and raise the issue in the trial court, see Nieder v.
Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973), and only explicitly in her
reply brief, thereby compounding the problem, see L.J. Zucca, Inc. v. Allen
Bros. Wholesale Distribs. Inc., 434 N.J. Super. 60, 87 (App. Div. 2014) ("An
appellant may not raise new contentions for the first time in a reply brief.").
We note only that the evidence in the record on Donna's neuropsychological
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The trial court "has the opportunity to make first-hand credibility judgments
about the witnesses who appear on the stand; it has a 'feel of the case' that can
never be realized by a review of the cold record." N.J. Div. of Youth &
Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted). We are not
free to overturn the factual findings and legal conclusions of a trial judge
"unless we are convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as
to offend the interests of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of
Am., 65 N.J. 474, 484 (1974) (citation omitted).
Because the trial judge's findings that Donna and Albert abused and
neglected Jaden, Jamie and Katie, and that the Division proved all four prongs
of the best interests standard as to all three children and Becky by clear and
convincing evidence have that support in the record, we affirm the judgments
in both matters substantially for the reasons expressed by Judge Paganelli in
his thorough and thoughtful opinions accompanying each.
Affirmed.
condition is limited to its effect on her ability to parent. There is nothing in
the record as to its implications, if any, for the reliability of her statements to
police.
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