DCPP VS. Y.M. AND J.S., IN THE MATTER OF THE GUARDIANSHIP OF L.S. AND Z.H. (FG-06-0020-17, CUMBERLAND COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4822-16T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
Y.M.,
Defendant-Appellant,
and
J.S.,
Defendant.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF L.S.
and Z.H.,
Minors.
_________________________
Argued April 30, 2019 – Decided May 16, 2019
Before Judges Yannotti and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cumberland County,
Docket No. FG-06-0020-17.
Bruce P. Lee, Designated Counsel, argued the cause for
appellant (Joseph E. Krakora, Public Defender,
attorney; Bruce P. Lee, on the briefs).
Katrina A. Sansalone, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Katrina A. Sansalone, on
the brief).
Meredith A. Pollock, Deputy Public Defender, argued
the cause for minors (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Meredith A.
Pollock, of counsel and on the brief; Sean P. Lardner,
Designated Counsel, on the brief).
PER CURIAM
Y.M. (Yolanda) appeals from a June 26, 2017 Family Part order
terminating her parental rights to her two children, L.S. (Lynn), and Z.H.
(Zachary).1 Lynn and Zachary's biological father is J.S. (James).2 Having
1
We use fictitious names for Y.M., L.S., Z.H., H.C., J.C., J.S., and D.C., to
protect their privacy and for ease of reference.
2
James completed an identified surrender of his paternal rights to Lynn and
Zachary on October 24, 2016, and was dismissed from the litigation. He has not
participated in this appeal.
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2
considered her arguments in light of the record and applicable legal principles,
we affirm.
I.
In addition to Lynn and Zachary, Yolanda is the biological mother of two
other children, H.C. (Henry) and J.C. (Jennifer). Henry's biological father is
J.J., and D.C. (David) is Jennifer's father.
In June 2014, the Division of Child Protection and Permanency (Division)
received a referral from Zachary's school regarding suspected physical abuse by
David against then-three-year-old Zachary. The school reported that Zachary
had a bruise on his face which Zachary attributed to a fall caused by David
striking him.
The school also alleged that Zachary had bruises on both cheeks the week
prior. When asked about those bruises, Zachary initially explained that he ran
into a doorknob, but then said he fell on the floor. When the school worker
asked if someone grabbed him, Zachary responded "yeah, [David] grabbed me."
The school further reported that Zachary had been emotional and crying,
and that Yolanda and the children had recently moved in with David. Zachary
also stated that he once saw David hit Yolanda. After an investigation, the
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3
Division concluded that Zachary was harmed, but it did not substantiate the
physical abuse allegations.
In August 2014, Yolanda obtained a temporary restraining order against
David after a domestic violence incident for which she was treated at the
hospital. She later dropped this restraining order and moved back in with David
that same month.
Three months later, on September 23, 2014, the Division received another
referral from Henry's daycare, after a daycare staff member observed bruises on
Henry's side and ribs, as well as bruises and scratches on his face and back.
Yolanda explained that Henry acquired the scratches because he was starting to
crawl and the bruises were birth marks. The Division reviewed Henry's birth
records and confirmed that some of the marks on Henry's skin were birth marks.
The Division consequently found there was no physical abuse or risk of harm to
Henry.
On October 8, 2014, Henry's daycare again contacted the Division to
report a bruise on his forehead, which Yolanda explained was caused when
Henry hit his head while in his "bouncy swing." The daycare workers also
observed more bruises on Henry's right and left upper rib cage.
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4
The Division investigator took photographs of Henry's bruises, and a
physician, Dr. Marita Lind, reviewed them. Dr. Lind stated that Henry needed
to be seen at Cooper University Hospital immediately for further evaluation.
She also observed that Henry looked small for his age.
A Division caseworker, Perrin Rutter, asked Yolanda to meet her at
Henry's school. When Yolanda arrived, she "appeared to be very upset and
crying" and stated she had not seen the bruises on Henry's ribs, even though she
had given him a bath the night before and dressed him that morning. The only
explanation that Yolanda offered was that she had recently played "airplane"
with Henry, by holding him up by his rib cage and spinning him around.
Rutter directed Yolanda to take Henry to a doctor at Cooper Hospital that
day. After Yolanda initially declined, another Division caseworker advised that
if Yolanda refused to take Henry to Cooper Hospital, the Division would take
custody of the children.
While Yolanda prepared to take Henry to the hospital, Zachary told Rutter
that he was scared of "daddy" and that his "dad" did not live with him. Zachary
said he was scared of his "dad" because he "[hit] him on the buttocks with his
hand," and hit Zachary's brother and sister. Zachary stated that his "dad" hit
Henry on the head with his hand because Henry cries, and that his "dad" "yells
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a lot," but that he never saw his "dad" hit Henry any other time. Zachary also
stated he did not know how Henry's ribs were bruised. When Rutter asked about
Yolanda, Zachary commented that Yolanda did not yell at Henry, never dropped
him, and was "always playing and laughing with" Henry. Both Zachary and
Lynn denied that they, or their siblings, were physically disciplined by Yolanda.
Henry underwent testing at Cooper Hospital, which included x-rays and
blood tests. He was also examined by Dr. Kathryn McCann. Yolanda repeated
to Dr. McCann her claim that Henry bruised his head when he hit it on a toy that
was hanging from his "bouncy swing." Regarding the bruises on Henry's ribs,
Yolanda told McCann the same thing she told the Division; that she might have
caused those bruises playing airplane.
Henry's x-rays showed that he had twenty rib fractures at different stages
of healing, a fracture of his right arm consistent with pulling or twisting, a jaw
fracture, and a partially collapsed lung. Cooper Hospital physicians determined
that Henry had suffered non-accidental trauma and also diagnosed him with
numerous conditions, including failure to thrive and developmental delays.
Henry weight was below the fifth percentile, but he began gaining weight after
he was admitted to the hospital.
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The day following the referral, on October 9, 2014, Yolanda met with the
Vineland Police Department and told them Henry broke his bones when he fell
off the bed. When the officer told Yolanda that falling off the bed would not
cause all of the rib fractures, she responded that she did not know how else the
injuries would have occurred.
Yolanda admitted to the officers that David "smack[ed]" her and punched
her in the mouth. She also said that David hit Zachary and Lynn for jumping on
the bed, and that he hit the back of their legs with his leather belt several times.
Yolanda "smacked [David] in the back when he hit" the children, but he just hit
her back. When asked if she thought David could have hurt Henry, she cried
and answered yes, asking "[h]ow could I have been so blind, my poor baby?"
With respect to the bruises on Henry's ribs, Yolanda told the police that
on October 7, 2014, David gave Henry a bath and dressed him for bed, which
David did regularly. The following morning, Yolanda changed Henry's diaper
but did not see any bruises because she did not remove his shirt.
The Vineland police and Rutter also interviewed Lynn. Lynn told them
that David broke Henry's ribs, and that David grabbed Henry and hit him because
he would not drink his bottle. Lynn indicated Yolanda was present and told
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David to stop. Lynn said that David hit her and Zachary in the face with a belt
and their backs with a broomstick.
Lynn also said she witnessed Henry hit his head on the bouncy swing.
Lynn also stated that Zachary had laid down on the floor and David hit him with
a broomstick on his back until he bled. She added that Yolanda was downstairs
when David hit them and that Yolanda would hit David in the back when she
witnessed David striking them. Lynn also said David hit Yolanda when they
were at his house.
The Division executed a Dodd removal 3 on October 10, 2014, and
removed Zachary, Lynn, and Henry from Yolanda's care. It placed Lynn and
Zachary with their paternal relatives, A.P. and J.P. Henry was also placed with
them upon his release from the hospital on October 13, 2014.
On October 15, 2014, the court held an order to show cause hearing with
respect to a Title Nine complaint, N.J.S.A. 9:6-8.33, filed by the Division
against Yolanda and David. At the conclusion of the hearing, the court granted
the Division custody, care, and supervision of Lynn, Zachary, and Henry, and
granted Yolanda supervised visitation.
3
A "Dodd removal" refers to the emergency removal of a child from a ho me
without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act,
N.J.S.A. 9:6-8.21 to -8.82.
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On October 17, 2014, the Cumberland County Prosecutor's Office
interviewed Yolanda. A detective asked Yolanda about Henry's injuries, and
she told him that in June 2014, she was in a rush and placed Henry on the bed.
She claimed he rolled off of the bed and landed on his stomach, and that his face
and cheeks were red. Yolanda claimed she fed him that night and he seemed
fine, but his face was swollen when he woke up the next morning. Yolanda
reported that she called her "friend" David for advice and he told her to take
Henry to the hospital, but she did not do so because she was afraid the hospital
would call the Division.
On October 21, 2014, the Division interviewed David. The Division's
report indicated David was "irate" because the Division had removed the
children from his custody. David said that if someone had asked him how Henry
was injured, then he could have told them. A Division caseworker requested
David to share that information, but David answered that his attorney told him
not to talk about the incident.
On October 24, 2014, Dr. Lind evaluated Henry for physical abuse. In a
report dated April 13, 2015, she stated Henry's injuries indicated he experienced
"repeated traumatic injury." Dr. Lind also evaluated Zachary and Lynn on that
date and created reports based on her examinations. Although Dr. Lind
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9
evaluated Zachary and Lynn separately, both children repeated statements that
were similar to what they had told the Vineland police. When Dr. Lind asked
each child if they knew why Henry was in the hospital and why they were
speaking to her, Lynn and Zachary responded it was because David had hurt
Henry. Zachary and Lynn also told Dr. Lind that David hit Zachary with a
broomstick, and Zachary said he was afraid of David.
Lynn said she saw David hit Henry, and that David had told her to go back
upstairs and "smacked [her] on [her] arm with the belt on the way." She
indicated that Yolanda was present when this occurred and that David "wouldn't
let Mommy go home." In the past, she also saw David throw Henry on the floor
twice, and said that David had kicked Zachary's leg, hit his face, kicked her
shoulder, and broke Yolanda's leg, which made her go to the hospital. Lynn said
she did not witness David break Yolanda's leg, but that she heard it from upstairs
and hid in the closet with Zachary. Lynn explained that Yolanda would "hide
the baby" with Lynn and that Lynn heard a "smacking sound." Zachary similarly
stated that Lynn would hide him and Henry from David in a closet and tell him
to be quiet.
Dr. Lind recommended Lynn and Zachary also see a child mental health
professional to determine the impact of these events and develop a treatment
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10
plan. On November 5, 2014, the trial court continued custody with the Division
and ordered that Lynn and Zachary receive trauma therapy. It also temporarily
suspended Yolanda's visitation with her children.
On January 21, 2015, Yolanda was charged with one count of
fourth-degree child abuse, cruelty, and neglect, contrary to N.J.S.A. 9:6-3. She
plead guilty on or about June 25, 2015, was sentenced to one year probation,
and ordered to comply with Division services.
At a compliance review hearing on August 26, 2015, the court reinstated
Yolanda's weekly supervised visits with her children and directed her to undergo
domestic violence counseling and parenting skills training. Both Yolanda and
David told a Division caseworker that they were still in a relationship but did
not indicate whether they were living together.
Starting on September 2, 2015, the Division facilitated supervised visits
between Yolanda, Lynn, Zachary, and Henry. The Division also retained
Community Treatment Services on October 13, 2015, who worked with Yolanda
and her children for approximately eleven months to facilitate reunification.
Yolanda also met with a Services Empowering Rights of Women (SERV)
liaison on September 8, 2015, and attended group workshops for domestic
violence. On July 5, 2016, Yolanda attended a domestic violence program
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through SERV and participated in six out of eight workshops. She completed a
parenting skills program approximately one year later on September 27, 2016.
The Division referred Yolanda to Dr. Larry Seidman for a psychological
evaluation, which occurred on September 17, 2015. Although Yolanda
exhibited signs of anxiety and depression, Dr. Seidman did not recommend a
psychiatric evaluation because of her "laissez-faire" attitude and because she
would "likely be fully resistant" to such intervention. Dr. Seidman
recommended that Yolanda receive therapy to "aide her in understanding that
she [was] prone to choosing poor mates as companions and surrogate parents for
her children, [and] that continued domestic violence [was] likely to cause [her]
and her children even further distress or criminal penalty," and have serious
negative effects on her children's welfare. He also recommended that Yolanda
complete her domestic violence classes and participate in a parent education
class. Dr. Seidman did not recommend that Yolanda have custody of the
children at that time.
In the fall of 2015, police responded to domestic violence incidents
involving Yolanda and David. According to an October 2015 police report,
Yolanda tried to scratch David and held a small knife during an argument with
him. David claimed he did not feel threatened, and declined the opportunity to
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file a restraining order against Yolanda. In November 2015, police responded
to a burglary at Yolanda's residence. She told officers she believed David tried
to break into her home, but that she hid in the shower. She also told officers
that they had not dated for about six months, but spent time together every day.
The Division also referred Yolanda to Dr. Scott Schafer for mental health
counseling. In a May 2, 2016 report, Dr. Schafer sought to help her "recognize
unhealthy, dangerous relationships; [i]dentify stressors, anxiety, depression[;]
[a]ddress [her] problems as a child and parent;" and to address prior and current
domestic violence, and child abuse or neglect. Yolanda attended fourteen
sessions between March 2016 and January 2017, missed ten sessions within that
same timeframe, and did not complete treatment.
On February 16, 2016, Judge Harold U. Johnson, Jr., held a fact-finding
hearing with respect to the Division's Title Nine complaint against Yolanda and
David. During the fact-finding proceeding, the court permitted the Division,
over counsel's objection, to call Yolanda as a witness. Yolanda's counsel stated
the Division should be precluded from calling Yolanda because it would "make
her a witness against herself in the trial that the Division[] [was] prosecuting
against her." The court overruled the objection and explained that because the
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matter was a civil proceeding, the Division "ha[d] a right to call witnesses that
[it] sees fit."
On May 10, 2016, the court issued an order finding that the Division
proved by a preponderance of the evidence that Yolanda and David abused or
neglected Henry, Lynn, and Zachary. Specifically, it concluded that Yolanda
"allowed injury to [Henry] under N.J.S.A. 9:6-8.21(c)(1) and 8.21(c)(4)," and
she "created substantial risk of injury to [Lynn] and [Zachary] under N.J.S.A.
9:6-8.21(c)(4)."
On May 22, 2016, Yolanda reported another domestic violence incident
involving David. Yolanda claimed David kicked down the door to her
apartment. A responding police officer noted damage to her front door and
doorframe.
Dr. Seidman reevaluated Yolanda in August 2016. He reported that
Yolanda would benefit from psychotropic, psychiatric treatment, and
psychotherapy, but she "remain[ed] resistant to those interventions." Dr.
Seidman further recommended that the court terminate Yolanda's parental rights
and that the children be placed for adoption.
On August 2, 2016, the court accepted the Division's permanency plan for
the termination of parental rights followed by adoption. Approximately one
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month later, on September 13, 2016, the Division filed its guardianship
complaint.
In May and June 2017, the court conducted a three-day trial on the
Division's guardianship complaint.4 At trial, the Division relied on documentary
evidence, and the testimony of Daniel Melendez, who was a Division adoption
specialist assigned to the case in October 2016 and the Division's documen t
custodian. The Division also relied on the testimony of Dr. Alan Lee, who was
qualified as an expert in clinical and forensic psychology, and conducted
psychological and bonding evaluations of Yolanda, Lynn, Zachary, and the
resource parents. Neither Yolanda nor the Law Guardian called any witness or
offered any evidence.
On June 26, 2017, Judge Johnson issued a judgment and comprehensive
and thorough oral opinion in which he found that the Division proved by clear
and convincing evidence all four prongs of N.J.S.A. 30:4C-15.1(a). Judge
Johnson also explained that his determinations from the Title Nine fact-finding
proceeding "should become a part of" his Title Thirty decision. The court's
4
Henry is not included in this litigation. After a paternity test confirmed J.J. is
Henry's biological father, the court dismissed Henry from the Title Thirty
matter, and reopened the Title Nine litigation to address his care and custody.
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judgment terminated Yolanda's parental rights to Lynn and Zachary, and
awarded the Division guardianship of the children. Yolanda's appeal followed.
On appeal, Yolanda argues that the Division failed to prove prongs one,
three, and four of the "best interests of the child test" under N.J.S.A. 30:4C-
15.1(a) by clear and convincing evidence. Yolanda also claims the court
violated her Fifth Amendment rights against self-incrimination by forcing her to
testify at her related Title Nine fact-finding proceeding. Finally, she claims it
was improper for the same judge who presided over her Title Nine action to
decide the instant guardianship proceeding. We disagree with each of Yolanda's
arguments, and affirm substantially for the reasons set forth by Judge Johnson
in his well-reasoned and thoughtful oral opinion.
II.
As to Yolanda's first point, because all of the trial judge's findings were
supported by evidence the judge found to be clear, convincing, and credible,
they are entitled to our deference. N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Parents have a constitutionally protected right to the care, custody and
control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re
Guardianship of K.H.O., 161 N.J. 337, 346 (1999). The right to have a parental
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relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v.
R.G., 217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W.,
103 N.J. 591, 599 (1986). At times, a parent's interest must yield to the State's
obligation to protect children from harm. N.J. Div. of Youth & Family Servs.
v. G.M., 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10
(1992).
To effectuate these concerns, the Legislature codified the test for
determining when a parent's rights must be terminated in a child's best interests.
N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing
evidence the following four prongs:
(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
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(4) Termination of parental rights will not do more
harm than good.
See also A.W., 103 N.J. at 604-11.
A. Prong One
Yolanda raises four arguments with respect to the court's prong one
findings. She first argues that the Division failed to show by clear and
convincing evidence that she harmed her children or will continue to harm them.
Second, she contends the court failed to consider that she was a victim of
domestic violence and lacked control and power over her relationship with
David. Third, Yolanda claims the trial court erred in finding that she knew of
Henry's injuries, and knew that her relationship with David would lead to harm
to the children. Finally, Yolanda claims that the Division failed to present
competent evidence that Lynn and Zachary were actually harmed as a result of
David's abuse of Henry or by his domestic violence toward Yolanda. We
disagree with all of these arguments.
As to the first prong, the court determined that Yolanda placed the
children "in danger and continue[d] to place the children in danger in a way,
which would place their health, safety, and welfare at risk." Further, the court
stated it was not convinced that Yolanda ended her relationship with David, "as
evidenced by her contact with him as recently" as May 2017 and April 2017.
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Therefore, the court concluded, if Lynn and Zachary remained with Yolanda,
then the children would continue to have contact with David. The court also
found that Yolanda knew the injuries were occurring and "did nothing about it."
All of these findings were supported by substantial credible evidence in the
record.
Initially, we address Yolanda's argument that she was a domestic violence
victim and, therefore, lacked power over her relationship with David. While we
acknowledge that Yolanda was a victim of domestic violence, and are
sympathetic to her situation, we cannot ignore that her relationship with David
harmed the children, and placed them at serious risk of harm. As we have
previously stated, "[a] child cannot be held prisoner of the rights of others, even
those of his or her parents. Children have their own rights, including the right
to a permanent, safe, and stable placement." N.J. Div. of Youth & Family Servs.
v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004). Further, in a guardianship
matter, our Supreme Court has observed that "a mother's relationship with her
child's potentially dangerous father may be an appropriate consideration if that
relationship poses a clear threat to the child. A parent has the obligation to
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protect a child from harms that can be inflicted by another parent." Division of
Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (citation omitted).5
Here, the record supports the trial court's decision that Lynn and Zachary's
safety, health, and development will continue to be endangered by their
relationship with Yolanda. Melendez testified as to the Division's interactions
with Yolanda, Lynn, and Zachary, and Yolanda's and the children's participation
in recommended services. This testimony, along with that of Dr. Lee, and Dr.
Schafer's unrebutted reports, establish that Yolanda lacked insight as to the
gravity of the situation, the seriousness of Henry's injuries, and her role in
creating those risks to the children. Again, while we fully recognize and
sympathize with Yolanda's situation, the record clearly and convincingly
supports the trial court's conclusion that she harmed the children, and failed to
eliminate the risk of harm to the children by continuing her relationship with
David.
5
Defendant's reliance on N.J. Div. of Youth & Family Servs. v. F. H., 389 N.J.
Super. 576 (App. Div. 2007) is misplaced. Unlike the child in F.H., the evidence
clearly and convincingly demonstrated a consistent pattern of actual abuse by
David with Yolanda's acquiescence, coupled with a history of domestic violence
and continued denial. Thus, reunification with Yolanda would expose Zachary
and Lynn "to a high probability of being abused or neglected." Id. at 586. This
harm satisfies F.H. and N.J.S.A. 30:4C-15.1(a)(1).
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We also reject Yolanda's claim that the court committed error when it
concluded she should have been aware of Henry's injuries. Yolanda contends
that since Henry's other daily caretakers, including a babysitter, did not notice
or appreciate the scope of Henry's injuries, it is therefore reasonable to conclude
that she was similarly unaware of Henry's injuries, and that David's abuse was
the cause. As the Law Guardian, correctly argues, unlike Yolanda, the daycare
staff and other temporary caretakers did not observe David abusing the children,
and therefore, were not in the same position as Yolanda to observe and prevent
those injuries.
Further, contrary to Yolanda's contention, the court's finding that Lynn
and Zachary were harmed, or were placed at a risk of future harm, by witnessing
David's abusive conduct, particularly toward Henry, was supported by
competent evidence. As to the actual harm to Lynn and Zachary, at trial, Dr.
Lee testified that "domestic violence issues in the home certainly raise concerns
as to a child being exposed to physical risks . . . but also emotional risks . . .
[b]ecause children who are exposed to domestic violence situations often have
a remarkable difficulty trying to . . . make sense . . . psychological[ly] . . . [of]
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the conflict that they witness between adults." Dr. Lee's opinion was supported
by the medical reports admitted into evidence. 6
For example, based on her examination, Dr. Lind recommended that
Zachary see "a child mental health professional who can . . . provide an
appropriate treatment plan for his experience of physical abuse and witness to
domestic violence." Similarly, Dr. Lind stated Lynn should commence
treatment with a therapist who can provide "trauma focused [cognitive behavior
therapy] for her experience of physical abuse, witnessing physical abuse of her
siblings[,] and witnessing domestic violence." In her report, Dr. McLaughlin
indicated that Zachary and Lynn were in treatment with her and suffer from
"complex trauma and post-traumatic stress as well as depressive symptoms" and
noted both children were subjected to "multiple trauma at their home at the
6
In light of the testimony from Dr. Lee, and Dr. Lind's and Dr. Maryann
McLaughlin's reports, we find defendant's reliance on N.J. Div. of Youth and
Family Servs. v. S.S., 372 N.J. Super. 13, 25 (App. Div. 2004), and N.J. Div. of
Youth and Family Servs. v. I.H.C., 415 N.J. Super. 551, 583-84 (App. Div.
2010) misplaced. In S.S., we concluded that a court cannot "take judicial notice
of the fact that domestic violence begets emotional distress or other psychic
injury in child witnesses." 372 N.J. Super. at 25. Here, rather than taking
judicial notice of the harm caused to Lynn and Zachary by witnessing domestic
violence to their siblings, Dr. Lee's unrebutted testimony, along with Dr. Lind's
and Dr. McLaughlin's reports, provided sufficient, competent evidence for the
court to conclude the children were harmed and the Division clearly and
convincingly satisfied prong one.
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hands of their mother's significant other." She indicated that children like Lynn
and Zachary who suffer from trauma from individuals close to them need more
therapy than those who suffer from one incident. She noted that both children
were cooperative but the therapy was moving slowly and could take up to
thirty-six months.7
Finally, with respect to the risk that the children's health and safety will
be endangered by their relationship with Yolanda, we note that evidence of a
sibling's abuse is relevant to show harm to a child in a Title Thirty termination
of parental rights proceeding. See N.J. Div. of Youth & Family Servs. v. T.U.B.,
7
Yolanda did not object to the admission of Dr. Lind's or Dr. McLaughlin's
records at trial (or any of the Division's documentary evidence), nor has she
claimed on appeal the admission of those records, or the court's reliance on them,
was in error, or constitutes a fundamental miscarriage of justice. N.J. Div. of
Youth & Family Servs. v. M.C. III, 201 N.J. 328, 341 (2010). Normally, the
admissibility of Division reports requires satisfaction of the prerequisites for
admission as a business record under N.J.R.E. 803(c)(6). M.C. III, 201 N.J. at
346-47. In M.C. III, however, the Court held that where the Division had not
satisfied the N.J.R.E. 803(c)(6) prerequisites (or the "identical" requirements in
N.J.S.A. 9:6-8.46(a)(3), id. at 347), solely because the appellant had expressly
consented to admitting the report at trial, its admission was proper "without the
necessity of the Division's compliance with the strictures of the Rules." Id. at
348. Finally, we note that, on appeal, Yolanda has not objected to the trial
court's reliance on Zachary's and Lynn's disclosures, and, in fact, has
affirmatively relied on certain of their statements in her merits briefs.
Accordingly, we consider any argument that the court erred in considering those
statements waived. See Weiss v. Cedar Park Cemetery, 240 N.J. Super. 86, 102
(App. Div. 1990).
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450 N.J. Super. 210, 237 (App. Div. 2017) (stating "competent proof of the
abuse or neglect of a sibling is admissible in considering harm to a child in a
Title [Thirty] proceeding").
B. Prong Three 8
Yolanda next asserts the Division did not make reasonable efforts to
provide services to correct the circumstances that led to the removal of the
children. Again, we disagree.
Here, the court concluded that the Division offered services to Yolanda
and, while she participated, she did not complete the recommended services "to
the point where she [could] safely in the reasonably foreseeable future have
these children returned to her." The court noted that Yolanda continued her
relationship with David through regular contact. Finally, because the children's
biological father, James, completed an identified surrender of his parental rights,
8
As noted, Yolanda has not argued that the Division failed to establish prong
two of N.J.S.A. 30:4C-15.1(a). We have nevertheless independently reviewed
the record and are satisfied that the Division clearly and convincingly satisfied
this statutory element as well. Indeed, there was ample support in the record for
the court's finding that Yolanda's continued relationship with David showed she
was unwilling to provide a safe and stable home for Lynn and Zachary and she
would continue to put the children in danger as a result of "the volatile nature of
their relationship."
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and no other alternatives placements were suggested, the court determined there
were no alternatives to termination of parental rights.
There was overwhelming evidence in the record to support the court's
conclusion that Division made reasonable efforts to help Yolanda correct the
circumstances that had led to her children's removal. The Division facilitated
visitation with the children, referred Yolanda to parenting skills and domestic
violence classes, referred her to housing authorities to assist her in finding a new
apartment that was not in close proximity to David, and made referrals for
therapists. Despite these services, Yolanda failed to internalize any information
or benefit from the classes on parenting skills or domestic violence.
Yolanda contends that the domestic violence counseling was inadequate
because the Division failed to guarantee the confidentiality of her therapy
sessions with Dr. Seidman and Dr. Schafer. She claims that the purported lack
of confidentiality of her therapy records caused her to deny that David injured
Henry for fear that David would harm her. Yolanda's argument that David could
potentially have future access to these psychological reports because he is
Jennifer's father is, at best, speculative. Indeed, there was is no evidence in the
record to suggest that her therapists shared documents or information regarding
Yolanda with David, or intended to do so in the future.
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C. Prong Four
Yolanda also raises a number of challenges regarding the court's prong
four finding. First, she contends that the Division failed to introduce competent
evidence that the resource parents wished to adopt the children, and the court
should have considered the possibility of kinship legal guardianship (KLG).
Second, Yolanda maintains that Dr. Lee's conclusions were not corroborated by
his observations, and he inconsistently applied his methodology. Again, we
disagree.
In considering the fourth prong, and relying on the uncontroverted
testimony of Dr. Lee, the court concluded that terminating Yolanda's parental
rights would not do more harm than good. It found that the resource parents
could "deal with" any adverse effects of the termination, but that Yolanda would
"never be able to deal with the problems that [arose] from" removing the
children from the resource parent. The record fully supports these conclusions.
As to Yolanda's first argument, Yolanda waived the issue by not objecting
to the testimony at trial. M.C. III, 201 N.J. at 341. Moreover, as the court
correctly noted in its discussion of prong three, neither the Division nor Yolanda
offered any alternative placements. Additionally, Melendez testified that he
explained KLG to the resource parents, and that they preferred adoption. Since
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adoption was an option, KLG was not a defense to termination. See N.J. Div.
of Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004) (stating "when . . .
permanency provided by adoption is available, [KLG] cannot be used as a
defense to termination of parental rights").
With respect to Yolanda's argument that Dr. Lee's conclusions were not
corroborated by his observations, and that he inconsistently applied his
methodology, Yolanda did not present any expert witness to refute or contest
Dr. Lee's methodology during trial. Additionally, the court, who was in the best
position to evaluate Dr. Lee's credibility, found his testimony and his
conclusions to be "credible, believable, and uncontroverted." See State v.
Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000) ("The reviewing court must
give deference to the findings of the trial judge which are substantially
influenced by his or her opportunity to hear and see the witnesses and to have
the 'feel' of the case, which a reviewing court cannot enjoy."). In sum, we have
reviewed Dr. Lee's testimony and conclude Yolanda's challenges to the
reliability and consistency of his opinions are without merit.
III.
Yolanda also argues that the trial court violated her Fifth Amendment
rights against self-incrimination when it permitted the Division to call her as a
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witness at the Title Nine abuse and neglect fact-finding proceeding, and then
incorporated its findings from the Title Nine proceedings in its oral decision in
the guardianship matter. She additionally asserts that having the same trial judge
preside over both proceedings created an appearance of judicial bias that
requires reversal. We conclude that Yolanda's arguments are entirely without
merit.
In order to address Yolanda's Fifth Amendment challenge, we discuss
some basic principles underlying that constitutional and common law principle,
and its relevance in Title Nine and Title Thirty proceedings. Our Supreme Court
recently reaffirmed that "[t]he right against self-incrimination is guaranteed by
the Fifth Amendment to the United States Constitution and this state's common
law, now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E.
503." State v. S.S., 229 N.J. 360, 381 (2017) (quoting State v. Nyhammer, 197
N.J. 383, 399 (2009)). Both N.J.S.A. 2A:84A-19 and N.J.R.E. 503 contain
identical language that provides "every natural person has a right to refuse to
disclose in an action or to a police officer or other official any matter that will
incriminate him or expose him to a penalty . . . ."
When determining whether a matter is incriminating, the court must
consider "whether a criminal prosecution is to be apprehended, other matters in
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evidence, or disclosed in argument, the implications of the question, the setting
in which it is asked, the applicable statute of limitations[,] and all other factors
. . . ." N.J.R.E. 502. Moreover, "[t]he right against self-incrimination is
'confined to instances where the witness has reasonable cause to apprehend
danger from a direct answer.'" N.J. Div. of Child Prot. & Permanency v. S.K.,
456 N.J. Super. 245, 266 (App. Div. 2018) (quoting Hoffman v. United States,
341 U.S. 479, 486 (1951)). As such, the court "must determine that the
individual seeking to invoke the protection of the Fifth Amendment is
'confronted by substantial and real, and not merely trifling or imaginary, hazards
of incrimination.'" Ibid. (quoting United States v. Apfelbaum, 445 U.S. 115,
128 (1980)).
We acknowledge that our Supreme Court has identified termination of
parental rights actions as quasi-criminal matters. See In re Guardianship of G.S.,
137 N.J. 168, 177 (1994); In re Guardianship of Dotson, 72 N.J. 112, 118 (1976)
(recognizing that while a termination case "is denominated as a civil matter, it
is almost quasi-criminal in nature, since it seeks to terminate for cause all
parental ties between the children here involved and their natural parents").
Further, in certain circumstances, particularly where a defendant's criminal case
was pending when she testified during a Title Nine fact-finding hearing, we have
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concluded that a defendant's Fifth Amendment rights could be impacted. See
S.K., 456 N.J. Super. at 271 (holding that "[b]ased on the related criminal
charges pending against him at the time, defendant had a well-founded basis to
believe that answering the [Deputy Attorney General's] questions [at the fact -
finding hearing] would violate his right against self-incrimination under the
Fifth Amendment and N.J.R.E. 503").
However, we have also stated that "[a]n action for termination of parental
rights is a civil action." N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360
N.J. Super. 426, 467 (App. Div. 2003). Thus, although termination of parental
right cases are recognized as "quasi criminal," and require additional
protections, there is no case law to support defendant's claim that Title Thirty
proceedings are equal to criminal proceedings in the context of the right against
self-incrimination.
Applying the aforementioned principles to the facts before us, we
conclude that the court did not violate Yolanda's Fifth Amendment rights. First,
as noted, despite the "quasi-criminal" nature of Title Thirty proceedings, those
actions, as well as Title Nine matters, remain civil proceedings, and the full
panoply of rights afforded to a criminal defendant do not apply. See State v.
P.Z., 152 N.J. 86, 111-12 (1997). Second, unlike the defendant in S.K., at the
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time defendant testified at the May 2016 Title Nine fact-finding proceeding, she
had already plead guilty to fourth-degree child abuse by neglect over a year
earlier. Third, when she testified, the court had not even approved a permanency
plan of termination of parental rights, nor had the Division filed its guardianship
complaint. Under these circumstances, we cannot conclude that defendant had
"'reasonable cause to apprehend danger from a direct answer.'" S.K., 456 N.J.
Super. at 265 (quoting Hoffman, 341 U.S. at 486), such that her Fifth
Amendment rights were violated when she testified at the Title Nine fact-finding
proceeding. Moreover, as we have discussed, the evidence presented in the
guardianship trial clearly and convincingly satisfied N.J.S.A. 30:4C-15.1(a),
independent of the court's findings in the Title Nine matter.
Finally, we find defendant's claim that "an appearance of judicial bias"
existed caused by the same judge presiding over the Title Nine and Title Thirty
proceedings of insufficient merit to warrant extended discussion in a written
opinion. R. 2:11-3(e)(1)(E). From our review of the record, we conclude Judge
Johnson conscientiously and thoroughly considered all of the competent
evidence, and conducted the proceedings in a fair and unbiased manner.
Affirmed.
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