DCPP VS. C.E.G., M.E.P., J.M.E., AND S.A.L., IN THE MATTER OF THE GUARDIANSHIP OF C.G.P.G., D.A.P., A.A.L.G., N.A.L.G., D.O.L.G., AND J.J.M.G. (FG-14-0021-20, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-4185-19
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
C.E.G. a/k/a G.-L., M.E.P.,
and J.M.E. a/k/a J.E.M.,
Defendants,
and
S.A.L.,
Defendant-Appellant.
___________________________
IN THE MATTER OF THE
GUARDIANSHIP OF C.G.P.G.,
D.A.P., A.A.L.G., N.A.L.G.,
D.O.L.G., and J.J.M.G., minors.
___________________________
Submitted September 20, 2021 – Decided October 14, 2021
Before Judges Messano and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FG-14-0021-20.
Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Victor E. Ramos, Assistant Deputy Public
Defender, of counsel and on the briefs).
Andrew J. Bruck, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Peter D. Alvino, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors A.A.L.G., N.A.L.G. and D.O.L.G.
(Maria Emilia Borges, Assistant Deputy Public
Defender, on the brief).
PER CURIAM
Defendant S.A.L. (defendant or Sean) 1 appeals from a June 30, 2020
judgment of guardianship terminating his parental rights to his biological sons,
A.A.L.G. (Adam), born in January 2013, N.A.L.G. (Noel), born in January 2014,
and D.O.L.G. (Duke), born in October 2015, and granting guardianship of the
children to the Division of Child Protection and Permanency. The judgment
also terminated the parental rights of C.E.G. (Carla) to the boys and their half -
1
We use initials and pseudonyms to protect the confidentiality of the parties
and to preserve the confidentiality of these proceedings. R. 1:38-3(d)(12).
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2
brothers, C.G.P.G., (Carlos), born in March 2008, D.A.P. (Damian), born in
September 2009, and J.J.M.G. (Joel), born in August 2018, following Carla's
voluntary surrender of all six children at the close of evidence in the
guardianship trial. 2 Carla does not appeal from the judgment or otherwise
participate in this appeal, but her conduct is relevant to the issues raised by
defendant. He seeks reversal, arguing the Division failed to prove all four
prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Among
other issues, defendant's overlapping arguments challenge the testimony of the
State's expert witness. The Office of Law Guardian joins the Division in
supporting the judgment.
Following written submissions of the parties, the trial judge issued an oral
decision finding the Division satisfied the four-prong test by clear and
convincing evidence and held that termination was in the children's best
interests. In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). Based on
our review of the record and applicable law, we cannot discern on this record
whether the Division satisfied three of the four best interest prongs.
2
The judgment also terminated the parental rights of M.E.P., the biological
father of C.G.P.G., following the guardianship trial; and J.M.E., the biological
father of D.A.P. and J.J.M.G., by voluntary surrender. These fathers and sons
are not parties to this appeal.
A-4185-19
3
Accordingly, we affirm in part and reverse and remand in part for proceedings
consistent with this opinion.
I.
The guardianship trial spanned eight days between January and March
2020. The Division moved into evidence more than 150 exhibits, and presented
the testimony of three caseworkers, and Frank J. Dyer, Ph.D., a licensed
psychologist. Elizabeth Stilwell, Psy.D., testified on behalf of Carla as to the
psychological evaluation and bonding evaluation she conducted on the maternal
grandmother and her six grandchildren. The evidence did not include a bonding
evaluation between defendant and his sons; a comprehensive psychological
evaluation of defendant; or a substance evaluation of defendant. Defendant did
not testify or present any evidence. He was represented by assigned counsel and
appeared telephonically from Ecuador.
To place the legal issues in context, we recount, chronologically, the
significant facts from the testimony adduced at trial and the voluminous
documentary record before the trial court.
Defendant and Carla first became involved with child protective services
in Pennsylvania when they lived in Stroudsburg with their son Adam, and Carla's
older children, Carlos and Damian. In July 2013, the Monroe County Children
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4
and Youth Services (MCCY) opened a case on the family after police entered
the home pursuant to a welfare call from Carla's mother. The home was in
"deplorable condition." The bathroom was so littered with garbage, it could not
be used. Barely any food was present; food on the stove was covered with mold.
Police observed no milk or baby formula in the home, except for a soured bottle
of formula located in a swing where six-month-old Adam was seated. Noel and
Duke had not yet been born. Adam, Carlos, and Damian were placed with
Carla's parents until the home was cleaned and made habitable.
Four months later, in November 2013, Carla was incarcerated for drug
possession. During her incarceration, she gave birth to Noel.
In August 2014, defendant was arrested for his second driving while
intoxicated (DWI) offense, and thereafter incarcerated for seven months. While
on probation in September 2015, he was deported 3 to Ecuador. Adam was thirty-
two months old, Noel was twenty months old, and Duke was born the following
month.
3
We recognize "'[r]emoval' is the current statutory term used for what was
known in the past as 'deportation.'" State v. Gaitan, 209 N.J. 339, 345 n.1 (2012)
(citing Padilla v. Kentucky, 559 U.S. 356, 364 n.6 (2010)). Nonetheless, we use
the term, "deported," to avoid confusion with the children's various "removals"
from their parents' care.
A-4185-19
5
In April 2016, following Carla's relapse and inability to care for the
children, MCCY removed all five boys 4 from her care. The children remained
in foster care until June 2017, when they were reunified with Carla. Thereafter,
the family's case with MCCY remained open; defendant remained in Ecuador.
In October 2017, Carla moved to Dover, New Jersey with the children,
Damian's father, J.M.E. (Juan), and his two daughters, M.E. (Maya) and K.E.
(Karmen). In view of MCCY's ongoing supervision, the Division opened a case
on the family. Soon thereafter, the Division received referrals reporting
concerns about injuries to Carlos, Maya, and Karmen.
The precipitating event that led to the guardianship complaint occurred on
May 24, 2018, when the Division received a referral that Maya arrived at school
with multiple bruises on her body. Carla told the responding caseworker that
Maya's injuries occurred accidentally. Later that evening, Karmen was
hospitalized after Carla found her in the tub hardly breathing. Karmen too, had
multiple bruises on her body at different stages of healing. Again, Carla claimed
the injuries were accidental. Karmen was diagnosed with a skull fracture and
hematomas, caused by two traumatic impacts. To date, Karmen cannot move
4
Joel was not born until August 2018, after the Division was granted custody
of his siblings.
A-4185-19
6
her legs and arms. When interviewed by the prosecutor's office, Carla only
acknowledged she hit the children "on the hand, thigh, or butt with her hand." 5
The Division executed a Dodd removal 6 of all five children and was
granted custody following a hearing on May 30, 2018. Defendant's sons were
placed with a resource family, with whom they continuously resided through the
time of the guardianship trial. At the time of the removal, Adam was five years
old, Noel was four years old, and Duke was five months shy of his third birthday.
Thereafter, the Division located defendant in Ecuador. On August 22,
2018, pursuant to the Division's request and its contract with International Social
Services of Ecuador (ISS), a clinical psychologist and psychotherapist
conducted a home study concerning defendant and his extended family, with
whom he resided. The following month, ISS issued a favorable report. Among
other things, the report indicated defendant had a stable job as a carpenter, and
"harmonious" relationships with his divorced parents and extended family on
5
We affirmed the trial judge's findings that Carla physically abused Karmen
and Juan abused and neglected the child. N.J. Div. of Youth & Fam. Servs. v.
J.M.E. and C.G., No. A-0211-19 (App. Div. Dec. 22, 2020) (slip. op at 16).
6
A Dodd removal is an emergent removal of a minor without a court order
pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd Act. N.J. Div. of
Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
A-4185-19
7
both sides. Defendant's family supported his desire for reunification with his
sons. Their five-bedroom home was large enough to accommodate the boys.
Medical and educational services were available in their community.
The ISS evaluator deemed defendant emotionally stable, with "no signs of
any substance habits," but noted he "display[ed] a certain degree of anxiety, due
to the uncertainty surrounding his children's situation, as he does not know what
exactly ensued in the U.S. in relation to his wife and children." Defendant told
the evaluator Carla "was a responsible and loving mother, [who] always properly
cared for their children and provided them with protection and care."
Defendant's paternal extended family did not speak English; defendant intended
to teach the boys Spanish. He said he had been in "constant phone contact" with
the boys three years prior to the evaluation, and last spoke with Carla two years
prior.
On December 5, 2018, after learning ISS recommended that reunification
"can be considered," defendant told the Division he wished to be reunited with
his sons. The ensuing paternity test 7 was delayed, however, because the
Division was unable to contact defendant until three months later.
7
The Division determined a paternity test was necessary when it discovered
Carla's son, Damian, was the son of Juan and not M.E.P., as reflected in
Damian's birth certificate.
A-4185-19
8
On March 7, 2019, the Division located defendant in Texas; he had
crossed the border illegally and was detained by Immigration and Customs
Enforcement (ICE). The Division contacted ICE seeking to delay defendant's
deportation to complete his paternity test. Claiming he entered the United States
because he was concerned about his sons, defendant agreed to submit to the test.
Defendant maintained that he wished to reunite with his children. The Division
served defendant with the Title Nine abuse or neglect complaint (FN matter),
and provided him with an application for assigned counsel in the FN matter. On
March 27, 2019, testing confirmed Sean's paternity for all three boys. Around
March 29, 2019, defendant was deported to Ecuador and failed to contact the
Division, as previously agreed.
One month later, on May 2, 2019, the Division contacted defendant,
advising he was the biological father of Adam, Noel, and Duke. The Division
confirmed defendant's interest in caring for his sons, and his availability to
attend the May 21, 2019 court date telephonically. Because he worked during
the week, defendant informed the Division he only was available to speak with
the children by video calls on weekends. Defendant failed to contact the worker
on May 9, 2019, as scheduled.
A-4185-19
9
Defendant apologized to the worker the following week, during their May
15, 2019 telephone call, claiming he had "lost his phone and just got a new one."
The caseworker informed defendant that the Division intended to recommend
changing the case goal to adoption because Carla had not remediated the reasons
for the children's removal. Defendant reiterated his desire for reunification with
the children in Ecuador. He also requested video calls with his sons. Because
the current court order prohibited contact between defendant and the boys, the
worker said she would arrange for calls after receiving permission from the
court.
In its May 17, 2019 Court Report in the FN matter, the Division advised
the Family Part judge that defendant's international home study had been
completed with "no concerns" noted. In its summary of the ISS report the
Division noted "if [defendant] were to be considered as a primary caretaker,
there should be a plan in order to reintroduce him to the children's lives." The
Division further indicated that the assessment failed to address defendant's
substance abuse history. 8
8
The Division annexed the report to its responding brief on appeal. Although
the report was not admitted in evidence, the same judge who conducted the
guardianship trial also was assigned to the FN matter.
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10
On July 5, 2019, the Division filed a guardianship complaint, seeking in
relevant part, to terminate the parental rights of Carla and defendant to Adam,
Noel, and Duke. Among other things, the Division asserted "it was in the
process of assessing [defendant] and his relatives." The complaint did not
reference the August 22, 2018 ISS evaluation.
On July 30, 2019, the judge granted the Division's motion to dismiss the
FN matter, over the objection of defendant's assigned counsel. 9 The judge noted
"the guardianship m[atter] needs to go forward to determine whether there can
be any type of reunification or whether termination is appropriate." The
Division informed the judge that defendant was willing to submit to a
psychological examination, which was arranged through ISS.
In addition, defense counsel noted the Division was attempting to
implement video calls between defendant and the children, but the boys only
spoke English and defendant only spoke Spanish and, as such, the Division was
exploring interpreting assistance. The Division added that it also wanted the
children's therapist to confirm "there [wa]s no contraindication" by that contact.
The following month, on August 13, 2019, Dr. Dyer conducted bonding
assessments of the boys with their resource parents at his office. Dr. Dyer
9
The same attorney represented defendant in the FN and guardianship matters.
A-4185-19
11
interviewed Adam, age six, and Noel, age five, and conducted a bonding
assessment with their resource parents. Three-year-old Duke was not
interviewed. At the time of Dr. Dyer's evaluations, the children had resided with
the resource parents for thirteen months. 10
Defendant appeared telephonically at the next court hearing on September
3, 2019. As of that date, defendant still was "being assessed for placement," his
psychological evaluation having been scheduled the week prior. The deputy
attorney general added, however, that notwithstanding the results of defendant's
evaluation, the Division would need to determine whether the children could
overcome the geographic and language changes in view of the trauma they
suffered while living with Carla and Juan, and "the facts and the concerns that
preceded and led to their fourteen months in resource homes in Pennsylvania."
According to the deputy attorney general: "Having said that, if it is safe and in
the children's best interests for the children to return to [defendant], the Division
would absolutely support that and do whatever is necessary in order to make that
transition."
10
By the time of trial, the children had lived with their resource parents for
seventeen months.
A-4185-19
12
Defendant completed the psychological evaluation in September 2019.
Although he had completed a urine screening in June 2019, a substance abuse
evaluation was never conducted.
Video calls between defendant and the boys also commenced in
September 2019. While the caseworker was placing a call, Adam noticed
defendant's full name on the cellphone and stated, "[H]e has the same last name
as us. That's because he is our dad." Noel agreed, stating, "Yes, he's our dad."
Upon seeing defendant's photograph on the phone, they told the worker they
remembered defendant. Notably, Dr. Dyer did not interview defendant or
observe his interactions with the children during their video visitation telephone
calls.
At trial, Dr. Dyer testified that during his August 13, 2019 bonding
evaluation, Noel and Adam referred to their resource parents as "mom and dad."
They told Dr. Dyer they did not know anyone named Sean or have relatives in
Ecuador. Both boys "interacted in a very affectionate and enthusiastic manner
with the resource parents, who were similarly affectionate and appropriate with
them." Dr. Dyer elaborated: "The interaction was not that much different from
the normal interaction of children who had been with their birth parents in an
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13
uninterrupted household for years. So, based on that, it's my inference that these
children have formed a significant degree of attachment to the resource parents."
Although the resource parents told Dr. Dyer that Adam "did not display
behavior problems," the expert cited a behavioral assessment report indicating
Adam "has some problems with aggression." Dr. Dyer told the judge both Noel
and Adam "present[ed] with some behavior problems."
As to whether it would be in the boys' best interest to be placed with
defendant, Dr. Dyer opined:
I want to emphasize, that as [defense] counsel correctly
pointed out, I have not met with [defendant], had no
direct contact with him; and therefore, I cannot form
any type of opinion concerning [defendant] personally.
But my concern resides in the impact of [sic] these
children of removing them from a resource home where
they have formed an attachment to their caretakers, it's
after a placement, though, I think it's seventeen months
this time around, after a little bit under a year with their
mother. And prior to that, a placement of somewhat
over a year in resource care in the State of
Pennsylvania.
With children who have had this kind of history,
of disrupted attachments, to send them to the home of
someone who is a stranger to them, and I asked the two
older boys, A[dam] and N[oel], if they knew anybody
named S[ean], if they knew if they had any relatives in
Ecuador, and they both denied that. So, for all practical
purposes, these children's birth father is a stranger to
them. To place children with this background with a
stranger, is taking an awfully big risk. That would be
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14
compounded in this case by transferring them to an
entirely different culture where they are not familiar
with anything. And they would be confused,
disoriented at first, and it's my prediction that because
of their attachment history and their current attachment
to their resource parents, that going forward they would
be damaged psychologically by removing them and
placing them with a parent who is a stranger to them.
In particular, the danger that I foresee would be an
impairment in the basic trust of all three children, an
impairment in their self-esteem, and an impairment in
the capacity of these children to form new attachments
to anybody. Not that these factors would be totally
eradicated, but there would be a significant amount of
damage in these areas: Self-esteem, basic trust, and
capacity to form new attachments.
[(Emphasis added).]
According to Dr. Dyer, the children would experience "a short-term
reaction of distress; disorientation" if they were "uprooted" from their present
placement and "sent to Ecuador." He further "predicted long[-]term" harm from
"the cumulative effect of yet another disruption of the continuity of these
children's care, piled on top of previous disruptions and previous experiences of
abuse and neglect."
On cross-examination, Dr. Dyer acknowledged that because he had never
met defendant, he could not express any opinion as to whether defendant or "any
individual" would be able to mitigate the psychological harm caused by
separating the children from their resource parents. Dr. Dyer also stated it was
A-4185-19
15
"entirely possible" that defendant's parents would be able to assist the children
in their "adjust[ment] to a new culture," but he could not opine either way.
According to Dr. Dyer: "There [wa]s no feature of the house that would raise
suspicions that [the children] are not going to be loved and valued there and
adequately cared for. The [grand]parents and [defendant] got a clean bill of
health from the international home study."
Acknowledging defendant claimed there was a bilingual school in his
area, Dr. Dyer was unsure whether that was the same school defendant had
selected for the children as referenced in the ISS report. In any event, Dr. Dyer
acknowledged he "would like to know more about it, what the quality of the
education is, whether the instructions [are] primarily in Spanish with some
English thrown in because there are gradations of bilingual education."
As of the time of trial, the resource parents were facilitating calls between
defendant and the boys on weekends. The caseworker testified that "D[uke] did
not appear to know [defendant]." However, "A[dam] and N[oel] refer to
[defendant] as 'Daddy S[ean]'" They also referred to J.M.E. as "Daddy J[uan]."
Based on the evidence adduced at the guardianship trial, the judge
analyzed each prong of the best interests test, emphasizing the importance of
permanency and stability for the children. In doing so, the judge credited the
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16
unrefuted testimony of the Division's witnesses. In particular, the judge found
the expert opinion of Dr. Dyer "extremely persuasive" here, where defendant "is
a stranger" to the children, who "would suffer psychological harm if sent to live
with [him] in Ecuador."
Noting defendant presented no factual or expert testimony to refute the
Division's evidence, the trial judge noted two statements contained in the record
"called into question" defendant's veracity and judgment. For example,
defendant's statement to the ISS evaluator "that he was in constant contact with
his children, prior to the 'events that lead to their institutionalization'" was
incredible "when juxtaposed with Dr. Dyer's credible testimony that the children
did not even know who [defendant] was." Secondly, the judge found defendant's
statement that Carla "was a responsible and loving mother[,]" who "always
properly cared for the children and provided them with protection and care" was
directly contradicted by the police officer's description of the "deplorable" state
of the family's Stroudsburg home.
Pertinent to this appeal, over defense counsel's objection, the judge
admitted Dr. Dyer's October 2019 email, recommending against placement of
the boys with defendant in Ecuador, and his testimony that the children would
suffer enduring psychological and enduring emotional harm if they were
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17
removed from their resource home. Counsel argued Dr. Dyer's opinion was
"net" primarily because he had not interviewed defendant and his reasons, in
part, were based on Dr. Stilwell's bonding assessment of the maternal
grandmother. According to the judge, Dr. Dyer's testimony did not relate to
defendant, but rather to "the effect of another removal, regardless of [with]
who[m] the children are placed." Although the email was brief, the judge found
the email merely summarized the expert's reasons that were set forth in his
lengthy report.
Ultimately, the trial judge concluded it was in the best interests of Adam,
Noel, and Duke to terminate defendant's parental rights. This appeal followed.
II.
Our scope of review on appeal from an order terminating parental rights
is limited. N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007).
We will uphold a trial court's factual findings if they are "supported by adequate,
substantial, and credible evidence." N.J. Div. of Youth & Fam. Servs. v. R.G.,
217 N.J. 527, 552 (2014). "When the credibility of witnesses is an important
factor, the trial court's conclusions must be given great weight and must be
accepted by the appellate court unless clearly lacking in reasonable support."
N.J. Div. of Youth & Fam. Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div.
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18
2005). No deference is given to the court's legal interpretations, which we
review de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995); see also N.J. Div. of Youth & Fam. Servs. v. I.S., 202 N.J.
145, 183 (2010).
It is axiomatic that parents have a constitutionally protected right to the
care, custody, and control of their children. N.J. Div. of Youth & Fam. Servs.
v. F.M., 211 N.J. 420, 447 (2012). That right, however, is not absolute. K.H.O.,
161 N.J. at 347; see also R.G., 217 N.J. at 553. "It is a right tempered by the
State's parens patriae responsibility to protect children whose vulnerab le lives
or psychological well-being may have been harmed or may be seriously
endangered by a neglectful or abusive parent." F.M., 211 N.J. at 447. At times,
a parent's interest must yield to the State's obligation to protect children from
harm. N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 397 (2009).
Importantly, "[c]hildren must not languish indefinitely in foster care while a
birth parent attempts to correct the conditions that resulted in an out-of-home
placement." N.J. Div. of Youth & Fam. Servs. v. S.F., 392 N.J. Super. 201, 209
(App. Div. 2007).
To effectuate these concerns, the Legislature created a test for determining
whether a parent's rights must be terminated in the child's best interests. When
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the guardianship judgment was issued in this case, N.J.S.A. 30:4C-15.1(a)
required that the Division satisfy the following four prongs by clear and
convincing evidence:
(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; [11]
(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
(4) Termination of parental rights will not do more
harm than good.
11
Effective July 2, 2021, the Legislature enacted L. 2021 c. 154, amending laws
pertaining to the standards for terminating parental rights and the placement of
children with relatives or kinship guardians. N.J.S.A. 30:4C-15.1(a)(2) was
amended to exclude from consideration the harm to children caused by removal
from their resource parents. Accordingly, the second sentence of prong two was
stricken from the revised statute. We discern no reason to apply the revised
statute retrospectively. See James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 563
(2014) (recognizing generally statutes should be applied prospectively).
Defendant has not argued otherwise. See R. 2:6-11(d).
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20
The four prongs are not independent of one another. N.J. Div. of Child
Prot. & Permanency v. T.D., 454 N.J. Super. 353, 379 (App. Div. 2018).
Instead, they "are interrelated and overlapping," N.J. Div. of Youth & Fam.
Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), and should form "a
composite picture" of what is in the best interests of the child, N.J. Div. of Youth
& Fam. Servs. v. M.M., 189 N.J. 261, 280 (2007) (quoting F.M., 375 N.J. Super.
at 258). Parental fitness is the crucial issue. K.H.O., 161 N.J. at 348. However,
parents in such proceedings should not be presumed unfit, and "all doubts must
be resolved against termination of parental rights." Id. at 347. Determinations
of parental fitness are fact sensitive and require specific evidence. Id. at 348.
Ultimately, "the purpose of termination is always to effectuate the best interests
of the child, not the punishment of the parent." Id. at 350.
Prongs One and Two
Both the first and second prongs of the best interests test address the harm
caused to children by parental conduct and the parent's failure to mitigate that
harm, focusing on the impact of the harm caused by the parent-child relationship
on the child over time. N.J.S.A. 30:4C-15.1(a)(1) and (2). These prongs "are
related to one another, and evidence that supports one informs and may support
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21
the other as part of the comprehensive basis for determining the best interests of
the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Termination of parental rights may be supported by evidence "that the
parent substantially caused, directly or indirectly, the harm to the child." N.J.
Div. of Youth & Fam. Servs. v. D.M., 414 N.J. Super. 56, 81 (App. Div. 2010).
It is well settled that "harm" in this context is not limited to physical harm. In
re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (holding "[s]erious and lasting
emotional or psychological harm to children as the result of the action or
inaction of their biological parents can constitute injury sufficient to authorize
the termination of parental rights."). Therefore, "courts must consider the
potential psychological damage that may result from reunification as the
'potential return of a child to a parent may be so injurious that it would bar such
an alternative.'" N.J. Div. of Youth & Fam. Servs. v. L.J.D., 428 N.J. Super.
451, 480-81 (App. Div. 2012) (quoting N.J. Div. of Youth & Fam. Servs. v.
A.W., 103 N.J. 591, 605 (1986)). Courts need not wait until the child is
irreparably harmed before concluding these prongs are satisfied. D.M.H., 161
N.J. at 383.
For instance, the failure of a parent to provide a "permanent, safe, and
stable home" engenders significant harm to a child. Ibid.; see also M.M., 189
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N.J. at 293 (upholding the trial court's termination of a father's parental rights
where his wife, who had the intellectual functioning of a seven-year-old, created
a dangerous and destabilizing environment). Similarly, "[a] parent's withdrawal
of . . . solicitude, nurture, and care for an extended period of time is in itself a
harm that endangers the health and development of the child." D.M.H., 161 N.J.
at 379. Such withdrawal constitutes a "failure to provide even minimal
parenting . . . ." Ibid.
The focus under the first prong is not on any "single or isolated harm," but
rather on "the effect of harms arising from the parent-child relationship over
time on the child's health and development." K.H.O., 161 N.J. at 348. Under
this prong, the Division must demonstrate harm to the child resulting from the
parental relationship "that threatens the child's health and will likely have
continuing deleterious effects on the child." Id. at 352; see also N.J. Div. of
Youth & Fam. Servs. v. A.L., 213 N.J. 1, 25 (2013). The Division must proffer
adequate evidence of "actual harm or imminent danger" to the child. Id. at 30.
The second prong of the best interests standard relates to parental
unfitness. K.H.O., 161 N.J. at 352. In considering this prong, the court should
"determine whether it is reasonably foreseeable that the parent[] can cease to
inflict harm upon the child." A.W., 103 N.J. at 607. "The second prong, in
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many ways, addresses considerations touched on in prong one." F.M., 211 N.J.
at 451.
In the present matter, the trial judge's findings as to prongs one and two
overlapped. The judge recognized: (1) there was no suggestion in the record
that defendant physically harmed his sons; and (2) "little, if no evidence, of
[defendant's] parental unfitness."
Instead, the judge found defendant failed to nurture the boys during his
prolonged absence and protect them from Carla's "instability, neglect, and
violence." As one example, because the children lived in the Dover home when
Carla subjected Karmen to "horrific" physical abuse, they "became victims of
multiple psychological trauma." The judge cited evidence in the record of
Carla's "ear pulling" and "slap[ping]" of the children, and their "seve ral
traumatic removals, returns[,] and removals."
The judge also emphasized the children were "attached to their respective
caregivers, with whom they have resided for approximately twenty-four
months" at the time of his decision. The judge elaborated:
The absence of nurture and protection are harm
that might, and I say, might, be mitigated under
different circumstances with children who have not
suffered what these children have suffered. Perhaps
children differently situated could be removed from the
United States, placed in Ecuador with a father that
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doesn't even speak their language, in a country where
they don't speak their language, maybe that could
happen under different circumstances and the children
be safe, but unfortunately, in this case, . . . [defendant]'s
absence over the last five years contributed to the
additional trauma suffered by these children, the
neglect and abuse in the home of [Carla], the repeated
removals and placements throughout the children's
lives, as Dr. Dyer testified, . . . "has taken their toll on
A[dam], N[oel] and D[uke]." Dr. Dyer opined that
removal from their resource parents and placement with
[defendant] in Ecuador, "a stranger to them, no more
than a virtual acquaintance, to a home in a country
where they cannot even speak the language, will cause
long-term emotional harm." There is absolutely no
persuasive factual or expert evidence, to the contrary,
in this record, I find.
Although the trial judge also quoted extensively from the "very positive" ISS
home study, he concluded defendant was "unable and/or unwilling to eliminate
the harms facing his children and he is unable or unwilling to provide a safe and
stable home."
Moreover, the judge was persuaded by Dr. Dyer's "unrebutted expert
testimony" that removal and placement of the children in Ecuador "will cause
untold damage." Recognizing Dr. Dyer had "no opinion" of defendant's
"parental capacity, having never met the man," the judge cited Dr. Dyer's
testimony that defendant was a "stranger" to his children and, as such, "they
would suffer psychological harm if sent to live with [him] in Ecuador." The
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judge also considered defendant's assessment of Carla "as a responsible and
loving mother . . . almost unfathomable." The judge concluded the children's
"current and stable environment . . . must be fostered and maintained."
Prong Three
On appeal, defendant limits his challenge of prong three to the first clause,
which requires that the Division make "reasonable efforts" to provide services.
"Reasonable efforts" are defined as:
attempts by an agency authorized by the [D]ivision to
assist the parents in remedying the circumstances and
conditions that led to the placement of the child and in
reinforcing the family structure, including, but not
limited to:
(1) consultation and cooperation with the parent in
developing a plan for appropriate services;
(2) providing services that have been agreed upon, to
the family, in order to further the goal of family
reunification;
(3) informing the parent at appropriate intervals of the
child's progress, development, and health; and
(4) facilitating appropriate visitation.
[N.J.S.A. 30:4C-15.1(c).]
The focus centers on the Division's efforts toward "reunification of the
parent with the child and assistance to the parent to correct and overcome those
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26
circumstances that necessitated the placement of the child into foster care."
K.H.O., 161 N.J. at 354. "[W]here one parent has been the custodial parent and
takes the primary . . . role in caring for the child[], it is reasonable for [the
Division] to continue to focus its efforts of family reunification on that custodial
parent, so long as [it] does not ignore or exclude the non-custodial parent."
D.M.H., 161 N.J. at 393. "The diligence of [the Division's] efforts," however,
"is not measured by their success," but rather "against the standard of adequacy
in light of all the circumstances of a given case." Ibid. Those circumstances
include "the individual case before the court, including the parent's active
participation in the reunification effort." Id. at 390.
Assessing prong three in this case, the trial judge attributed "any initial
delay" in services to defendant's conduct: defendant's DWI led to his
deportation in 2015; his illegal reentry led to his second deportation in 2019.
The judge found against those circumstances, the Division exerted efforts that
"border[ed] on Herculean" by delaying defendant's second deportation to serve
him with the FN complaint and facilitate the assignment of counsel.
Notably, however, the trial judge expressly found defendant's
psychological evaluation "was wholly inadequate and the Division should have
followed up with additional evaluations and recommendations and services."
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But the judge further found "that particular failure" did not undermine "the entire
panoply of services" under the circumstances of this case. Those services
"include[d] the home study, paternity testing, a psychological evaluation, . . . [a]
substance abuse evaluation and referral to services recommended therefrom[,]
[v]irtual communication with his children[,] and delaying his second deportation
with . . . the provision of counsel." The judge rejected defendant's argument
that the Division failed to facilitate contact with the children, crediting the
caseworker's testimony that defendant was only available for video calls on
weeknights and weekends, and the conversations with the children was limited
due to the language barrier.
Ultimately, the judge determined the Division made reasonable efforts in
view of the "barriers posed" by defendant's residence in Ecuador. Accordingly,
the judge found "the Division was correct to focus [its] efforts on reunification
with [Carla,] the custodial parent here in the U.S., rather than with [defendant,]
who resided in Ecuador and was a stranger to these children."
Prong Four
The fourth prong "is related to the first and second elements of the best
interest standard, which also focus on parental harm to the children." D.M.H.,
161 N.J. at 384. "The question to be addressed under that prong is whether, after
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28
considering and balancing the two relationships, the child[ren] will suffer a
greater harm from the termination of ties with [their] natural parents than from
the permanent disruption of [their] relationship with [their] foster parents."
K.H.O., 161 N.J. at 355.
"[T]o satisfy the fourth prong, the State should offer testimony of a 'well
[-]qualified expert who has had full opportunity to make a comprehensive,
objective, and informed evaluation' of the child's relationship with both the
natural parents and the foster parents." M.M., 189 N.J. at 281 (emphasis added)
(quoting In re Guardianship of J.C., 129 N.J. 1, 19 (1992)). "Ultimately, a child
has a right to live in a stable, nurturing environment and to have the
psychological security that his most deeply formed attachments will not be
shattered." F.M., 211 N.J. at 453. Indeed, the "child's need for permanency is
an extremely important consideration pursuant to this prong." R.G., 217 N.J. at
559 (citations omitted).
As to the final prong, the trial judge "applaud[ed]" defendant for "coming
forward now and offering to be, actually no, fighting to be a placement for [his
sons]." But the judge concluded "the trauma visited upon these children during
the years of [defendant]'s absence ha[s] left these children unable to endure such
a transition." To support his conclusion, the judge cited "Dr. Dyer's unequivocal
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and unrebutted expert opinion . . . that the children would suffer longtime harm
if placed in [defendant]'s care." The judge reiterated that defendant was a
"stranger" to the children, unable to "speak their language" and "lives in a
country where their language is not spoken." In sum, the judge concluded that
although Dr. Dyer did not form an opinion about defendant's parenting ability,
Dr. Dyer determined "there exists no relationship among [defendant] and the
children that could ever hope to mitigate the harm of removing them yet again
and placing them in Ecuador."
III.
At the outset, we discern no error in the trial judge's determination that
the Division satisfied prong one by clear and convincing evidence. Defendant's
prolonged absence from his sons' lives – resulting from defendant's incarceration
and two-time deportation – directly affected his ability to nurture and protect
Adam, Noel, and Duke. As the judge aptly recognized, during defendant's
absence, the boys were exposed to Carla's "instability, neglect, and violence,"
see M.M., 189 N.J. at 282, and have suffered psychological trauma, see K.L.F.,
129 N.J. at 44. Defendant has not presented any evidence to suggest otherwise.
We therefore affirm the trial judge's findings as to prong one substantially for
the reasons expressed in his oral decision.
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On this record, however, we cannot conclude the Division satisfied the
remaining prongs by clear and convincing evidence.
With regard to prong two, the judge found "little, if no evidence" that
defendant was unfit. Instead, the judge determined Dr. Dyer's testimony
established that another removal – this time from resource parents, with whom
the children are bonded – would cause "serious and enduring emotional or
psychological harm" under the second sentence of then-enacted prong two.
Nonetheless, Dr. Dyer acknowledged ISS's favorable home study, which raised
no "suspicions" about the love and care the children would receive if they were
reunified with defendant in Ecuador.
Not having met defendant, however, Dr. Dyer could not opine whether
defendant would be able to mitigate the harm caused by the children's separation
from the resource parents. Dr. Dyer further acknowledged it was "entirely
possible" that the paternal grandparents could assist in that adjustment. Dr. Dyer
also stated he needed more information as to whether the children's prospectiv e
school offered bilingual classes and services.
We are therefore concerned that Dr. Dyer's opinion was rendered without
the benefit of having met defendant or observed defendant interacting with his
children during their telephonic visitation. Unlike the trial judge, we cannot
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conclude on this record that defendant's prior absence from the boys' lives will
impede his present ability to ease their transition to reunification. Because the
fourth prong is best satisfied following the expert's evaluation of the children
with their biological and resource parents, M.M., 189 N.J. at 281, and defendant
was never included in such evaluation, on this record we also cannot conclude
this prong was met.
As to prong three, as the trial judge correctly observed, the Division failed
to obtain a more thorough psychological evaluation and facilitate any follow -up
services after receiving ISS's "wholly inadequate" evaluation. Also, contrary to
the judge's finding that the Division facilitated a substance abuse evaluation and
referral to recommended services, as the Division acknowledges on appeal, "ISS
never conducted the substance abuse evaluation." It is unclear from the record
how, if at all, these deficiencies impacted Dr. Dyer's conclusions.
We recognize there is no indication in the record whether a remote
bonding assessment would even be possible, given defendant's inability to return
to the United States for in-person interaction with his children. Accordingly, on
remand the trial judge shall conduct a hearing as to whether the Division can
conduct a meaningful remote bonding evaluation of defendant and the children,
including the circumstances under which the evaluation could occur. The judge
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shall also order any other evaluations the Division's expert deems necessary to
determine whether defendant has the ability to mitigate the harm that would be
caused by the boys' separation from their resource parents.
In conclusion, we affirm the trial judge's decision as to prong one of the
best interests test. Because we cannot determine whether further proceedings
could develop a more complete record enabling us to conduct appropriate
appellate review as to whether the Division has satisfied its burden under prongs
two, three, and four, we remand to the Family Part. The judge shall decide
whether under the unusual facts presented, further evaluations of defendant, his
home in Ecuador, and any bonds he may have forged with his children are
possible, and, if so, whether the Division should be ordered to complete those
evaluations. We leave to the judge's discretion how to conduct this aspect of the
remand, including whether testimony and additional evidence is necessary for
the judge to decide whether such further evaluations are reasonably possible
under the circumstances. The remand shall be completed within ninety days,
and the judge shall file a written statement of his decision. We retain jurisdiction
pending the judge's decision.
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Affirmed in part; vacated and remanded in part. Jurisdiction is retained.
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