C.Y.R. AND C.S. VS. C.M. (FD-12-1805-15, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )


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  •                              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    NOT FOR PUBLICATION WITHOUT THE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-2764-16T2
    C.Y.R., f/k/a C.Y.S.
    and C.S.,1
    Plaintiffs-Appellants,
    v.
    C.M.,
    Defendant-Respondent.
    _____________________________
    Argued April 12, 2018 – Decided June 13, 2018
    Before Judges Simonelli, Rothstadt and Gooden
    Brown.
    On appeal from Superior Court of New Jersey,
    Chancery Division, Family Part, Middlesex
    County, Docket No. FD-12-1805-15.
    Jennifer E. Presti and Lynne Strober argued
    the cause for appellants (Mandelbaum Salsburg,
    PC, attorneys; Jennifer E. Presti, on the
    briefs).
    Joy A. Anderson argued the cause for
    respondent (Law Office of Joy Anderson, LLC,
    attorneys; Joy A. Anderson, on the brief; Jeff
    Thakker, of counsel and on the brief).
    1
    We use initials and fictitious names to identify                              the
    participants in this matter pursuant to Rule 1:38-3(d).
    PER CURIAM
    This    matter    involves    a   third-party    custody      dispute    over
    three-year-old      E.M.    (Edward)      between   his   biological        father,
    defendant C.M. (Conrad), and the child's maternal aunt and uncle,
    plaintiffs C.Y.R. (Catherine) and C.S. (Charles) (collectively,
    plaintiffs).      Following a ten-day custody trial, the court held
    plaintiffs failed to rebut the presumption of custody in favor of
    Conrad    by     clear     and    convincing      evidence      of    exceptional
    circumstance based on psychological parentage.                       We agree and
    affirm.
    I.
    Background Facts
    Edward was born in October 2014.           C.M.S. (Carol) is Edward's
    biological mother.         Carol and Conrad were not married, but they
    lived together and jointly raised Edward until Carol's death.
    In November 2014, the family became involved with the New
    Jersey Division of Child Protection and Permanency (Division) when
    Conrad    was   arrested    for     simple    assault   following      a   domestic
    violence incident with Carol.             The charges were later dismissed
    when Carol declined to pursue the matter or seek a restraining
    order.    The Division found that abuse and neglect of Edward was
    "not   established"       against     either    parent,   but     provided      them
    2                                 A-2764-16T2
    domestic violence counseling.      The Division closed the file after
    the couple completed counseling.
    On April 21, 2015, Carol died of a stab wound.            According to
    Conrad, he and Carol were arguing over her text messaging another
    person, a physical altercation ensued, Carol retrieved a knife,
    they struggled over the knife, and Carol accidentally stabbed
    herself in the chest.     Following an investigation, the Middlesex
    County Prosecutor's Office did not charge Conrad in connection
    with Carol's death.
    Edward was in the apartment at the time of the altercation.
    The police notified the Division and asked Conrad's sister to take
    custody of Edward, which the Division approved.                 The Division
    initiated an investigation, but did not seek emergent removal of
    Edward from Conrad because they found he was safe with his father.
    However, on the day Carol died, plaintiffs filed an emergent order
    to   show   cause   (OTSC),   seeking   temporary     custody    of    Edward.
    Catherine certified that defendant was "suspected of murdering
    [her] sister[,]" she feared for Edward's life, Edward would not
    be cared for, and Carol designated them in her Last Will and
    Testament to be the child's guardians.
    On April 21, 2015, the court entered an ex parte OTSC granting
    plaintiffs   temporary   legal   and    residential    custody    of    Edward
    "pending the completion of the investigation against . . . [Conrad]
    3                                  A-2764-16T2
    and pending further [o]rder of the [c]ourt[.]"2   The court set May
    27, 2015 as the return date for the OTSC.
    On April 27, 2015, Conrad filed a pro se motion for an order
    granting him sole legal and physical custody of Edward, and
    subsequently retained an attorney to represent him.   On April 29,
    2015, Conrad visited the Division's office and discussed his plan
    for Edward's return to his custody.     He reported that Carol's
    family was calling him a murderer and expressed his concern that
    his son would be alienated from him while in their care.   He also
    reported he was diagnosed with Post Traumatic Stress Disorder
    resulting from witnessing Carol's death, and was actively engaged
    in therapeutic services.   He expressed his willingness to comply
    with whatever the Division requested of him and agreed to undergo
    a psychological evaluation and sign release forms in connection
    with his mental health care.
    On May 13, 2015, Conrad underwent a psychological evaluation
    with Carolina Mendez, Ph.D. to assess his parenting ability, mental
    status, and treatment needs.   Mendez recommended that he undergo
    a more comprehensive, in-depth evaluation of his risk of engaging
    2
    It is unclear from the record whether the court was referring
    to the Prosecutor's investigation, the Division's investigation,
    or both.
    4                           A-2764-16T2
    in domestic violence in the future, as well as individual therapy
    that incorporated domestic violence counseling.
    Mendez testified at the custody hearing, but not as an expert
    witness.   She testified consistent with her report and reiterated
    her   concern   about   Conrad's   history   of   domestic   violence   and
    criminal activity.3     She re-emphasized the need for defendant to
    undergo a more in-depth evaluation and recommended his parenting
    time be supervised time until then.
    In a May 27, 2015 order, the court continued plaintiffs'
    temporary legal and physical custody of Edward, granted Conrad
    supervised parenting time every Saturday for two hours, and ordered
    Conrad to continue individual therapeutic services the Division
    offered and cooperate with Mendez's recommendation that he undergo
    a more in-depth evaluation.        Catherine's husband, J.R. (John), a
    law enforcement officer, supervised Conrad's parenting time.
    On June 12, 2015, the Division completed its investigation
    and found "[t]he allegations of neglect, substantial risk of
    physical injury/environment injurious to health and welfare . . .
    to [Edward] . . . [were] not established."         However, the Division
    3
    Defendant apparently has convictions for eluding law enforcement
    and resisting arrest, playing of loud radio, phonograph or musical
    instrument, obstructing the administration of law or governmental
    function, and noncompliance with posted restrictions at a State
    park.   There are no judgments of conviction in the appellate
    record.
    5                             A-2764-16T2
    asked    the     court        to    order     Conrad    to     comply      with    updated
    recommendations Mendez made after she reviewed additional records,
    specifically,          that    he    complete     anger      management,      undergo      a
    substance abuse evaluation, and participate in a parenting skills
    program.
    On June 19, 2015, Conrad visited the Division's office and
    inquired       about    parenting       skills    classes.          He   expressed      his
    continued        willingness           to     comply         with    the      Division's
    recommendations, as well as his concern that he was not receiving
    the full amount of supervised parenting time the court granted
    him.
    In a July 2, 2015 order, the court ordered Conrad to comply
    with Mendez's updated recommendations and continued his supervised
    parenting time.          In a September 17, 2015 case management order,
    the    court    set     discovery       deadlines      and     continued     plaintiffs'
    temporary      legal     and       physical   custody     of    Edward     and    Conrad's
    supervised parenting time.
    On September 30, 2015, Conrad completed a parenting skills
    program.    On October 26, 2015, the Division advised the court that
    Conrad was participating in counseling through the Fatherhood
    Training Program and an anger management program.
    In a November 2, 2015 order, the court increased Conrad's
    supervised parenting time to four hours every Saturday and granted
    6                                    A-2764-16T2
    him additional supervised parenting time on Wednesday evenings,
    to be supervised by his parents, rather than John.           On November
    16, 2015, Conrad completed the Fatherhood Training Program and
    also completed an anger management program.
    On February 19, 2016, the Division advised the court that
    Conrad completed parenting skills and anger management programs,
    but had not engaged in domestic violence counseling.      The Division
    also advised that Conrad declined to complete a substance abuse
    evaluation and home inspection on the advice of his attorney.         The
    court subsequently directed Conrad to complete a substance abuse
    evaluation,   participate   in   domestic   violence   counseling,    and
    submit to a home inspection.
    On March 10, 2016, Conrad completed a substance evaluation.
    He did not test positive for any illicit substances and there was
    no recommendation for substance abuse treatment.          On March 14,
    2016, the Division advised the court that it had referred Conrad
    to domestic violence counseling, but the provider would not accept
    him due to the pending criminal investigation of Carol's death.
    On March 24, 2016, the Division completed an inspection of Conrad's
    home and found no safety issues. Thereafter, at the conclusion of
    the first day of the custody hearing on June 8, 2016, the court
    granted   Conrad   unsupervised     overnight    parenting     time     on
    alternating weekends and Wednesday.
    7                             A-2764-16T2
    The Parties' Experts
    Plaintiffs' expert, Diane Travers, a licensed social worker,
    conducted a bonding evaluation between Edward and Catherine.                 The
    evaluation included three home visits and collateral interviews
    with Catherine and John, their children, Catherine's parents, and
    Carol's friend, T.V. A significant portion of the evaluation
    involved completion of the Groves Bonding Checklist, which rates
    preschoolers to assess their attachment to adults.
    Travers noted in her report there was a secure attachment and
    bond between Edward and Catherine, which they formed prior to
    Carol's death.   Travers concluded there would be a negative impact
    on Edward, both physically and mentally, if the bond were broken
    through removal from Catherine's custody. She testified at the
    custody hearing consistent with her report and opined there was a
    "psychological    parent     bond"   between      Catherine     and    Edward.
    Plaintiffs   presented     no   evidence   that    Charles     had    formed    a
    psychological parent bond with Edward.
    Conrad's    expert,    Andrew   Brown,       Ph.D.,   a   psychologist,
    conducted a bonding evaluation between Conrad and Edward that
    included Conrad's other children.        Brown stated in his report that
    he observed Conrad engaging positively with Edward, and concluded
    Edward was "genuinely enjoying the company of his natural father"
    8                                  A-2764-16T2
    and   "display[ed]    comfort,     security         and   confidence"    with    him.
    Brown found Edward "relat[ed] to [his father] in a natural and
    relaxed    manner[,]"      there   were       "no   episodes    of   hesitance      or
    reluctance to be in close proximity to [his father,]" and the
    "[a]ffection [was] reciprocated, eye contact [was] mutual and
    interactions [were] intimate."            Brown concluded "[t]hese were all
    sign of a child who has formed a deep attachment."                      Brown also
    noted that Edward "demonstrate[d] that he is attached to his half
    siblings."
    Brown determined there was a secure attachment between Conrad
    and Edward and "a potential that any arrangement leading to the
    forced severance of this attachment will result in irreparable
    psychological harm and trauma to [Edward]."                  He opined "[w]ithin
    a reasonable degree of psychological certainty," that Edward "is
    attached to his natural father" and the attachment should not be
    severed.     He recommended "that the goal of family reunification
    be vigorously pursued and executed as soon as possible."
    Brown also conducted a psychological evaluation of Conrad.
    He noted in his report that Personality Assessment Inventory
    revealed that Conrad did "not present with evidence for the
    presence      of     psychopathology            or        aberrant      personality
    functioning[.]"      The   Culture-Free        Self-Esteem      Inventory,      which
    measured Conrad's perception of self, resulted in scores in the
    9                                  A-2764-16T2
    "high" range.       The Beck Depression Inventory revealed that Conrad
    was not clinically depressed.                The Child Abuse Potential Inventory
    revealed that Conrad had no indications toward the potential for
    physical child abuse.             The Parenting Stress Index did not reveal
    any high parenting stress or defensiveness in Conrad.                            Finally,
    Brown found that Conrad's IQ was in the average range, and he "did
    not     display    any   behavior      symptomatic         of    thought    disorder         or
    psychosis."         Brown    concluded         that      Conrad's      "[p]rognosis        for
    parenting [was] good."
    Brown   testified        at   the    hearing      consistent      with    his      two
    reports.        He also testified that Conrad was friendly, loving,
    caring, and considerate, did "not pose as a threat to harm his
    .   .   .   son"   and     "ha[d]     the     cognitive      template      required        for
    parenting."        Brown     opined         that    Conrad       did    "not     currently
    demonstrate any emotional or behavioral issues that would prevent
    him from executing parenting" and "demonstrat[ed] the capacity to
    mitigate separation [from plaintiffs]."                         Brown reiterated that
    Edward had a "deep emotional attachment to his father" and would
    suffer      "problems,      in    terms      of    his   development[,]"         if     their
    relationship was severed.
    The Division's Caseworkers
    Division    caseworkers        confirmed         that:    the   Division        never
    sought to remove Edward from Conrad; it had no safety concerns for
    10                                       A-2764-16T2
    the child when with his father; Conrad completed the requisite
    services; and the Division's recommended provider for domestic
    violence counseling rejected him because of the pending criminal
    investigation.     A caseworker verified that Conrad was cooperative
    throughout   the   Division's   investigation   and   had   visited   the
    Division's office to complain that the Division had not come to
    inspect his home despite his numerous calls to the Division.
    Another caseworker verified that Conrad called her "all the time"
    and visited her office several times to discuss the case with her
    and her supervisor.
    The Trial Court's Decision
    On March 7, 2017, the trial judge issued a comprehensive oral
    opinion, holding that plaintiffs failed to rebut the presumption
    of custody in favor of Conrad by clear and convincing evidence of
    exceptional circumstances based on psychological parentage.           The
    judge conducted the two-step analysis for third-party custody
    disputes set forth in Watkins v. Nelson, 
    163 N.J. 235
     (2000),
    which first required plaintiffs to rebut the presumption by clear
    and convincing evidence of parental unfitness, abandonment, gross
    misconduct, or existence of exceptional circumstances affecting
    the welfare of the child.       The judge found plaintiffs did not
    11                             A-2764-16T2
    establish     unfitness,     abandonment,     gross   misconduct,     or     any
    wrongdoing by Conrad.4
    The judge acknowledged that proof of psychological parentage
    could constitute exceptional circumstances.                However, the judge
    determined plaintiffs did not prove exceptional circumstances
    because they did not establish prong one of the psychological
    parentage test set forth in V.C. v. M.J.B., 
    163 N.J. 200
    , 223
    (2000), which required clear and convincing proof that Conrad
    consented    to    and   fostered   the   parental    relationship     between
    plaintiffs.
    The   judge    found   plaintiffs     failed    to    show   Conrad    was
    physically    or    emotionally     absent,    unable,      or   incapable    of
    performing    his   parental    duties.       The   judge   also   found     that
    plaintiffs had not formed a psychological parentage bond with
    Edward and even if they did, Conrad did not consent to or foster
    it. The judge granted Conrad legal and physical custody of Edward,
    and ordered him to foster plaintiffs' relationship with the child,
    cooperate with visits with plaintiffs, and have Edward attend
    therapy to assist in his development.
    4
    Plaintiffs do not challenge these findings.
    12                                A-2764-16T2
    II.
    On   appeal,   plaintiffs     contend   Catherine    is   entitled    to
    custody of Edward because they presented proof that she is his
    psychological parent under the exceptional circumstances standard
    set forth in Watkins and V.C.       Plaintiffs concede that Conrad did
    not consent to Catherine's formation and establishment of a parent-
    like relationship with Edward, but argue he impliedly consented
    and acquiesced to Catherine becoming Edward's psychological parent
    by his delay for over two years in completing evaluations and
    services the Division recommended, which caused Edward to remain
    in Catherine's custody.    In the alternative, plaintiffs argue that
    Conrad's actual consent was not necessary because, by his delay,
    he   yielded   authority     for     Catherine    to     become   Edward's
    psychological parent.5
    Our review of a trial judge's factual findings, following a
    non-jury trial, is limited.      Elrom v. Elrom, 
    439 N.J. Super. 424
    ,
    433 (App. Div. 2015).      "Generally, 'findings by the trial court
    are binding on appeal when supported by adequate, substantial,
    credible evidence.'"     
    Ibid.
     (quoting Cesare v. Cesare, 
    154 N.J. 5
       Plaintiffs cite to unpublished opinions to support their
    arguments.    However, unpublished opinions do not constitute
    precedent or bind us. Trinity Cemetery Ass'n v. Twp. of Wall, 
    170 N.J. 39
    , 48 (2001); R. 1:36-3.
    13                              A-2764-16T2
    394, 411-12 (1998)).     In Family Part matters, this "[d]eference
    is especially appropriate when the evidence is largely testimonial
    and involves questions of credibility."       Cesare, 154 N.J. at 412
    (citation omitted).    "Reversal is warranted only when a mistake
    must have been made because the trial court's factual findings are
    'so manifestly unsupported by or inconsistent with the competent,
    relevant   and   reasonably   credible   evidence   as   to   offend   the
    interests of justice[.]'"     Elrom, 439 N.J. Super. at 433 (quoting
    Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 
    65 N.J. 474
    ,
    484 (1974)).     "Consequently, when a reviewing court concludes
    there is satisfactory evidentiary support for the trial court's
    findings, 'its task is complete and it should not disturb the
    result[.]'" 
    Ibid.
     (quoting Beck v. Beck, 
    86 N.J. 480
    , 496 (1981)).
    "Deference is appropriately accorded to factfinding; however, the
    trial judge's legal conclusions, and the application of those
    conclusions to the facts, are subject to our plenary review."
    
    Ibid.
     (quoting Reese v. Weis, 
    430 N.J. Super. 552
    , 568 (App. Div.
    2013)). "Finally, legal conclusions are always reviewed de novo."
    
    Id. at 433-34
     (citation omitted).        Applying the above standards,
    we discern no reason to reverse.
    As a threshold matter, we note plaintiffs did not cite to any
    statute in their complaint supporting the court's jurisdiction
    over this matter.    Throughout the proceeding, the parties and the
    14                              A-2764-16T2
    judge referenced N.J.S.A. 9:2-4, N.J.S.A. 9:2-5, and N.J.S.A. 9:2-
    9,    without   specifically   setting   forth   which   one   supported
    jurisdiction.
    However, N.J.S.A. 9:2-4, the best interests of the child
    standard, "refers only to parents and does not refer to third
    parties[,]" Watkins, 163 N.J. at 244, and N.J.S.A. 9:2-56 does not
    apply because Carol was not Edward's sole custodian at the time
    of her death.     We conclude that jurisdiction fell under N.J.S.A.
    9:2-9, which provides as follows:
    When the parents of any minor child or the
    parent or other person having the actual care
    and custody of any minor child are grossly
    immoral or unfit to be intrusted with the care
    and education of such child, or shall neglect
    to provide the child with proper protection,
    maintenance and education, or are of such
    vicious, careless or dissolute habits as to
    endanger the welfare of the child or make the
    child a public charge, or likely to become a
    public charge; or when the parents of any
    minor child are dead or cannot be found, and
    there is no other person, legal guardian or
    6
    N.J.S.A. 9:2-5 provides as follows, in pertinent part:
    In case of the death of the parent to whom the
    care and custody of the minor children shall
    have been awarded by the Superior Court, or
    in the case of the death of the parent in
    whose custody the children actually are, when
    the parents have been living separate and no
    award as to the custody of such children has
    been made, the care and custody of such minor
    children shall not revert to the surviving
    parent without an order or judgment of the
    Superior Court to that effect.
    15                             A-2764-16T2
    agency exercising custody over such child; it
    shall be lawful for any person interested in
    the welfare of such child to institute an
    action in the Superior Court, Chancery
    Division, Family Part, in the county where
    such minor child is residing, for the purpose
    of having the child brought before the court,
    and for the further relief provided by this
    chapter.
    [(Emphasis added).]
    "N.J.S.A. 9:2-10 then allows a court, in an action brought by a
    third party pursuant to N.J.S.A. 9:2-9, to award custody of the
    child to that third party."       Watkins, 
    163 N.J. at 244
    .
    When   read   together,   N.J.S.A.         9:2-4,   N.J.S.A.   9:2-9,   and
    N.J.S.A. 9:2-10:
    indicate that in a custody dispute between a
    parent and a third party, the public policy
    of this State is that a presumption exists in
    favor of the parent.      A third party can
    overcome that presumption by satisfying the
    standard required for termination of the
    rights of a non-consenting parent: unfitness,
    abandonment,     gross     misconduct,     or
    "exceptional circumstances."
    [Watkins,   163    N.J.        at   244-45    (emphasis
    added).]
    The court must conduct a two-step analysis when a third party
    seeks custody of a child over the child's natural parent.               First,
    a third party can overcome the presumption in favor of the natural
    parent by presenting clear and convincing evidence of parental
    unfitness, abandonment, gross misconduct, or the existence of
    16                               A-2764-16T2
    exceptional circumstances affecting the welfare of the child.
    Watkins, 163 N.J. at 253-55.
    Second, once the first prong is met, the court can then
    consider the best interests of the child test articulated in
    N.J.S.A. 9:2-4(c). Id. at 254.                "[I]n custody determinations
    between a fit parent and a third party, as opposed to claims made
    between two fit parents, the child's best interests become a factor
    only after the parental termination standard has been met, rather
    than the determinative standard itself."              Id. at 253 (emphasis
    added).       "[T]he best interest of the child cannot validly ground
    an award of custody to a third party over the objection of a fit
    parent without an initial court finding that the standard for
    termination of the rights of a non-consenting parent or the
    'exceptional circumstances' prong has been satisfied."                 Id. at
    255.
    This    case   only   involves   exceptional   circumstances.      The
    exceptional circumstances doctrine is grounded in the court's
    power of parens patriae to protect minor children from serious
    physical or psychological harm.              Id. at 246-47.   This standard
    "always requires proof of serious physical or psychological harm
    or a substantial likelihood of such harm" and is to be determined
    on a case-by-case basis.         Id. at 248.      Proof that a third party
    has become a child's psychological parent by assuming the role of
    17                          A-2764-16T2
    his or her legal parent who has been unable or unwilling to
    undertake the obligations of parenthood will suffice to establish
    exceptional circumstances.   Id. at 254; V.C., 163 N.J. at 219.
    Such proof will place the third party "in parity" with the legal
    parent.   V.C., 163 N.J. at 227-28, 230.
    To demonstrate the existence of a psychological parentage,
    the third party must prove four elements:
    [1] the legal parent must [have] consent[ed]
    to and foster[ed] the relationship between the
    third party and the child; [2] the third party
    must have lived with the child; [3] the third
    party   must   [have]   perform[ed]   parental
    functions for the child to a significant
    degree; and most important, [4] a parent-child
    bond must [have] be[en] forged.
    [Id. at 223.]
    As to element one, the legal parent must have been a "participant
    in the creation of the psychological parent's relationship with
    the child" by
    ced[ing] over to the third party a measure of
    parental authority and autonomy and grant[ing]
    to that third party rights and duties vis-à-
    vis the child that the third party's status
    would not otherwise warrant[, thereby creating
    the likelihood that the third party would
    develop a profound bond with the child.]
    [Id. at 224.]
    "[T]he focus is on [the legal parent's] intent during the formation
    and pendency of the parent-child relationship."     Ibid.    Absent
    18                           A-2764-16T2
    consent, the legal parent "has the absolute ability to maintain a
    zone of autonomous privacy for [himself] and [the] child."        Ibid.
    The record confirms that Conrad did not consent to plaintiffs'
    custody of Edward or to the formation and establishment of a
    parentage relationship between Catherine and the child. The record
    also confirms that Conrad did not impliedly consent or acquiesce
    to the creation of a psychological parent relationship or yield
    authority for Catherine to become Edward's psychological parent.
    Rather, the record shows that Conrad's separation from Edward was
    entirely involuntary, he contested plaintiffs' custody from the
    very outset of this litigation and took immediate steps to regain
    custody, and he actively sought out and cooperated with the
    Division in order to be reunified with his son.           Any delay in
    completing   the   Division's   services   was   not   attributable    to
    Conrad's affirmative or unjustifiable actions.
    Further, Conrad was never absent physically or mentally from
    Edward or found to be unable or incapable of performing his
    parental duties.    He remained in his son's life throughout this
    protracted litigation, maintained a deep and secure bond with his
    son, took active steps to regain custody, and the Division found
    him to be a capable parent who posed no risk of harm to the child.
    We are satisfied the judge correctly found that plaintiffs failed
    to rebut the presumption of custody in favor of Conrad by clear
    19                             A-2764-16T2
    and convincing evidence of exceptional circumstances based on
    psychological parentage.
    III.
    Plaintiffs argue the court erred by transferring custody to
    Conrad without taking his testimony and making findings of fact
    or conclusions of law as to his credibility, character, or ability
    to care for Edward under the best interests of the child standard
    articulated in N.J.S.A. 9:2-4(c).       Plaintiffs also argue the court
    failed to apply an adverse inference against Conrad after he
    asserted his Fifth Amendment right against self-incrimination.
    These arguments lack merit.
    Watkins made clear that, if the third party seeking custody
    over a natural parent fails to satisfy the first prong of the
    Watkins test, the inquiry ends and the court need not consider the
    best interests of the child second prong. 163 N.J. at 253. Because
    the judge properly found plaintiffs failed to satisfy the first
    prong of the Watkins test, he was not required to consider the
    best interests of the child articulated in N.J.S.A. 9:2-4(c).
    Accordingly, there was no need for Conrad's testimony to determine
    Edward's best interests.
    Nevertheless,   for   the   sake   of   completeness,   we   address
    plaintiffs' argument that the court must always base its custody
    decision on all factors relevant to the child's best interests.
    20                              A-2764-16T2
    Plaintiffs cite to In re Baby M, 
    109 N.J. 396
    , 456 (1988) to
    support this argument.     There, a biological father entered into a
    surrogacy    contract   with   a   surrogate     mother,   who   refused     to
    relinquish custody.       
    Id. at 412
    .        The court invalidated the
    surrogacy contract as being against public policy, but nonetheless
    found that the biological father was entitled to custody based on
    the best interests of the child after considering various factors,
    including each parent's stability, finances, and employment, among
    other factors.     
    Id. at 457-60
    .         This case is distinguishable
    because Conrad was entitled to a presumption of custody in his
    favor and the judge did not need to consider the best interests
    of the child because plaintiffs failed to rebut that presumption.
    Watkins, 
    163 N.J. at 253
    .
    Plaintiffs cite to D.A. v. R.C., 
    438 N.J. Super. 431
    , 454
    (App. Div. 2014), to argue that, despite the testimony of mental
    health practitioners, it is the court's ultimate responsibility
    to determine what custody arrangement is in the best interests of
    the child.    In D.A., where a parent sought to change the child's
    custody   arrangement,   the   trial     court   failed    to   consider   the
    relevant statutory framework.       
    Id. at 433
    .    We remanded the matter
    with instructions to do so.        
    Id. at 461
    .      In contrast here, the
    judge made repeated reference to the requisite authority and
    properly applied it.     Thus, D.A. does not apply.
    21                                A-2764-16T2
    Plaintiffs also cite to Terry v. Terry, 
    270 N.J. Super. 105
    ,
    118 (App. Div. 1994), a child custody case which required trial
    courts   to   set   forth   the   statutory   criteria   for   any   custody
    analysis. The judge here amply satisfied Terry through his repeated
    reference to the Watkins standard.
    Lastly, plaintiffs allege the judge abdicated his parens
    patriae role when he rendered a decision without hearing Conrad's
    testimony, contending that such failure "created a substantial
    potential     for   irreparable    physical   and   psychological     harm."
    However, the record does not support plaintiffs' bare allegations,
    and it is clear the judge was not required to hear Conrad's
    testimony because plaintiffs failed to overcome their burden under
    the first prong of the Watkins test.          Moreover, there was ample
    evidence that a return of custody to Conrad was in Edward's best
    interests, including expert testimony.        Accordingly, the judge did
    not err in rendering a custody decision without having heard
    Conrad's testimony.
    In addition, the judge did not err in failing to draw an
    adverse inference from Conrad's refusal to testify after asserting
    his Fifth Amendment right against self-incrimination.           Courts may
    draw an adverse inference where a party refuses to testify in a
    civil matter.       See State, Dep't of Law & Public Safety, Div. of
    Gaming Enf't v. Merlino, 
    216 N.J. Super. 579
    , 587 (App. Div. 1987).
    22                              A-2764-16T2
    The inference may be "drawn only if there is other evidence
    supporting an adverse finding; it must not alone constitute the
    evidence     of   guilt."   
    Ibid.
       (citation   omitted).      An    adverse
    inference is a discretionary evidential ruling by the trial court.
    See Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 
    424 N.J. Super. 448
    , 474 (App. Div. 2012).
    While the adverse inference is discretionary, trial courts
    have alternative remedies, such as barring that party from offering
    any testimony, including testimony which inures to their benefit.
    Attor v. Attor, 
    384 N.J. Super. 154
    , 170 (App. Div. 2006).               Such
    alternatives are consistent with the ruling in Mahne v. Mahne, 
    66 N.J. 53
    , 61 (1974), a divorce case in which the husband invoked
    the Fifth Amendment as to allegations of adultery and the Supreme
    Court allowed trial courts "broad choices of sanctions when dealing
    with good faith exercises of the privilege[.]"       Further, in Attor,
    a matrimonial matter cited by plaintiffs, the wife invoked the
    Fifth Amendment as to separate immigration proceedings, fearing
    that she could be implicated for providing false testimony to
    immigration officials.      Attor, 
    384 N.J. Super. at 161
    .          Although
    the court found her invocation was improper because she was not
    really at risk of criminal charges, we determined that, had her
    invocation been proper, the trial court "should then either have
    drawn   an   adverse    inference   against   defendant   or   struck     her
    23                               A-2764-16T2
    testimony[.]"   
    Id. at 170
    .    Here, the judge followed Attor and
    Mahne by barring Conrad's testimony on his behalf.
    Next, plaintiffs cite In re Guardianship of D.J.M., 
    325 N.J. Super. 150
    , 155-56 (Ch. Div. 1999), to illustrate an example
    wherein a biological mother was compelled to testify despite
    invoking the Fifth Amendment as to charges that she sexually
    assaulted the minor child.    However, trial court opinions do not
    constitute precedent and are not binding on us.    S & R Assocs. v.
    Lynn Realty Corp., 
    338 N.J. Super. 350
    , 355 (App. Div. 2001).       In
    any event, the case does not apply.   There, the biological mother
    requested a stay of the Division's guardianship action pending
    resolution of criminal charges, citing the Fifth Amendment.       Id.
    at 152-53.   The court denied a stay, explaining that the delay
    necessitated by a stay was contrary to the child's best interests
    and need for permanency.   Id. at 161-62.   The court also explained
    that the biological mother "may testify and invoke the Fifth
    Amendment in response to particular inquiries."      Ibid.   Because
    the judge here was not required to reach the best interests of the
    child test articulated in N.J.S.A. 9:2-4, Conrad's testimony,
    including particular inquiries outside the criminal investigation
    and Carol's death, was not necessary and there was no need to
    compel his testimony or draw an adverse inference.
    24                           A-2764-16T2
    Plaintiffs also cite New Jersey Division of Youth & Family
    Services v. S.S., 
    275 N.J. Super. 173
     (App. Div. 1994) to argue
    in favor of an adverse inference.     However, that case concerned a
    parent who refused to testify after the Division had successfully
    shifted the burden for her to prove non-culpability, and her "oral
    testimony was simply one means of several available to her to
    demonstrate her non-culpability."     
    Id. at 181
    .     Here, Conrad had
    no burden of proof and no reason to testify.        Thus, there was no
    need for an adverse inference.
    We are satisfied the judge committed no error by transferring
    custody to Conrad without taking his testimony or in failing to
    apply an adverse inference after invocation of the Fifth Amendment.
    Affirmed.
    25                            A-2764-16T2