DCPP VS. F.R. AND D.M.-R., IN THE MATTER OF THE GUARDIANSHIP OF V.R. AND S.R. (FG-19-0022-17, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-1562-17T2
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
F.R.,
Defendant-Appellant
and
D.M.-R,
Defendant.
____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF V.R.
and S.R.,
Minors.
_____________________________
Submitted December 18, 2018 – Decided January 9, 2019
Before Judges Hoffman and Firko.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FG-19-0022-17.
Joseph E. Krakora, Public Defender, attorney for
appellant (Lauren M. Derasmo, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Victoria Almeida Galinski,
Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Noel C. Devlin, Assistant Deputy
Public Defender, of counsel and on the brief).
PER CURIAM
Defendant F.R. appeals from the judgment of guardianship terminating his
parental rights to his children, fourteen-year-old V.R. (Victor),1 and thirteen-
year-old S.R. (Sara). The children's Law Guardian and the Division of Child
Protection and Permanency (Division) urge us to affirm. Following our review
of the record, we affirm the judgment, substantially for the reasons stated by
Judge Michael C. Gaus in his oral opinion. The factual findings of Judge Gaus
are supported by substantial credible evidence, including his evaluation of
1
We use initials and pseudonyms to protect the parties' privacy.
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2
witness credibility, and based on those findings, his legal conclusions are
correct.
I
The Division began investigating defendant when the children's mother
sought a restraining order against him in December 2013. In seeking the
restraining order, she alleged defendant had raped her adult daughter, Julie,2 and
claimed she now feared for her younger children. 3
Victor told investigators defendant made him and Sara sleep naked with
him and defendant touched his penis while in bed. Sara also said defendant had
rubbed her vagina. The Division sent the children for psychosocial evaluations
and later concluded the allegations of abuse were substantiated. In March 2016,
the Division placed the children with their older brother and his girlfriend, where
they remain.
Defendant denied touching the children inappropriately and challenged
the Division's findings. The Division referred the matter to the Office of
Administrative Law (OAL) for a hearing. However, when the children did not
testify at the hearing, the Administrative Law Judge (ALJ) determined the
2
Defendant is not Julie's biological father.
3
The children's mother died during the termination proceedings.
A-1562-17T2
3
Division had not produced sufficient credible evidence to substantiate the
charges.
In September 2016, as part of a reunification process, defendant attended
a psychological evaluation performed by Dr. Barry Katz; however, defendant
did not respond to attempts to schedule follow up visits. He also missed
appointments for psychiatric evaluations and failed to participate in individual
therapy. Defendant often lost contact with the Division for extended periods of
time.
The children entered therapy and told their counselors "we don't see
[defendant] because he used to, like, sexually abuse us." According to Sara,
defendant exposed her to pornography. She also disclosed that defendant
"touched my private, my butt and my boobies with his hand. He touched my
vagina inside and outside with his hand."
In August 2016, the Division filed the guardianship complaint under
review. In July 2017, the matter proceeded to trial, where the children testified.
Defendant did not attend trial on the day of their testimony, but his attorney
appeared via telephone – without objection – due to an illness. Defendant's
counsel declined to question the children.
A-1562-17T2
4
Victor testified his parents acted violently toward each other, with
defendant once hitting his mother's eye with a brush. He also testified defendant
touched him in bed and in the shower. The touching in the shower occurred
daily and made Victor feel uncomfortable and "weirded out." Victor does not
want to live with his father, does not want visits with his father, and wants to be
adopted by his older brother and his girlfriend.
Sara testified she saw defendant grab her mother by the throat and that he
would smack her (Sara) on the "butt," making the area become very red.
Defendant would also touch her vaginal area. Like Victor, she does not feel safe
with defendant and does not wish to visit him.
On the next day of trial, defendant sought to strike the children's testimony
on the grounds of collateral estoppel due to the ALJ's finding. The judge denied
the request.
Dr. Katz testified as an expert in psychology and bonding. Defendant
admitted to him three incidents of oral sex with Julie. Dr. Katz said defendant
described Julie as a "prostitute" and admitted paying her for sex so she could
buy drugs.
Defendant denied to Dr. Katz that he ever slept naked with his children,
but admitted to taking baths and showers with them. He also revealed that his
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5
primary income from 2006-2009 – the last time he worked – came from playing
cards online.
Based on these admissions, Dr. Katz stated defendant exhibited impaired
impulses and poor boundaries with regard to the children, but did not conclude
defendant had committed sexual abuse of the children. Nonetheless, he opined
the children suffered from multiple traumas including domestic violence,
neglect, and inappropriate sexual behavior. Dr. Katz stated removing the
children from their brother would be "catastrophic," leading to significant harm,
and that defendant could not ameliorate the harm of removal, but would likely
increase the harm.
Defendant also testified at trial. He denied hitting and hurting the
children's mother. He did not seek reunification with the children. After his
testimony, he requested his mother testify via telephone to rebut statements Dr.
Katz made about defendant's treatment of her. The court denied the request
because defendant had not provided advance notice he would present her
testimony.
On appeal, defendant raises the following points of argument:
I. STANDARD OF REVIEW
A-1562-17T2
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II. THE MANY PROCEDURAL VIOLATIONS COMMITTED BY THE
LOWER COURT MERIT REVERSAL OF THE TERMINATION OF
PARENTAL RIGHTS
A. The Lower Court Erred In Determining That Res Judicata And
Collateral Estoppel Did Not Apply.
1. The Issues Litigated In The OAL Are Identical To Those
Litigated At Trial.
2. The Issue Of F.R.'s Abuse Of His Children Was Actually
Litigated In The OAL.
3. Judge Monaco's Decision Is A Final Judgment On The
Merits.
4. The Determination Of Whether F.R. Abused His Children
Was Essential To The Prior Decision And The Parties Are
Identical.
5. The Lower Court's Reliance On R.D. Is Misplaced.
6. Collateral Estoppel Is Not Avoided With A Change In
Nomenclature.
7. The Lower Court Erred In Finding That It Was Not Bound
By The OAL Decision.
8. The Lower Court Erred In Not Applying The Entire
Controversy Doctrine.
B. The Lower Court Abused Its Discretion By Failing To Adjourn
When Counsel Could Not Be Present. (Not Raised Below)
C. F.R. Was Denied The Right To Notice Due To DCPP's Mid-Trial
Change Of Reasons For Termination. (Not Raised Below)
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D. The Lower Court Erred In Barring F.R.'s Mother From
Testifying.
III. REVERSAL OF THE TERMINATION OF PARENTAL RIGHTS IS
WARRANTED BECAUSE IT IS THE RESULT OF INEFFECTIVE
ASSISTANCE OF F.R.'S TRIAL COUNSEL. (Not Raised Below)
A. By Agreeing To Appear By Phone During The Children's
Testimony Counsel Inappropriately Waived F.R.’s Rights. (Not
Raised Below)
B. Counsel Failed To Sequester DCPP's Expert Thereby Allowing
The Expert To Alter His Testimony. (Not Raised Below)
C. Counsel Failed To Object To The Introduction Of The Reports
OF Experts Who Did Not Testify. (Not Raised Below)
IV. THERE IS NOT SUFFICIENT, CREDIBLE EVIDENCE TO
SUPPORT THE TRIAL COURT'S DETERMINATION THAT
DCPP HAS CARRIED ITS BURDEN OF PROOF AS TO ALL
FOUR PRONGS OF N.J.S.A. 30:4C-15.1A
A. F.R. Has Not Harmed His Children Within The Meaning Of
N.J.S.A. 30:4C-15.1(a)(1).
B. The Trial Court's Decision That The Second Prong Of The
Statute Was Satisfied Was Not Supported By Substantial,
Credible Evidence.
C. The Record Does Not Contain Sufficient Evidence To Support A
Finding That DCPP Met Its Burden Of Proof Under The Third
Prong Of The Statute.
D. The Conclusion That Termination Would Not Do More Harm
Than Good Was Not Supported By The Evidence.
A-1562-17T2
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II
We exercise limited review of a decision terminating a parent's rights.
N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007).
Factual findings supporting such a judgment "should not be disturbed unless
'they are so wholly insupportable as to result in a denial of justice,' and should
be upheld whenever they are 'supported by adequate, substantial[,] and credible
evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div.
1993) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474,
483-84 (1974)). The Family Part's findings should stand unless "they are so
manifestly unsupported by or inconsistent with the competent, relevant [,] and
reasonably credible evidence as to offend the interests of justice." Rova Farms
Resort, 65 N.J. at 484 (citing Fagliarone v. Twp. of N. Bergen, 78 N.J. Super.
154, 155 (App. Div. 1963)). However, we accord no special deference to the
Family judge's interpretation of the law and the legal consequences that flow
from established facts. See N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J.
145, 183 (2010).
Defendant first argues four procedural errors warrant reversal: 1)
collateral estoppel should have prevented any further litigation of the abuse
claims; 2) the trial judge improperly coerced defendant's attorney to appear via
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9
telephone during the children's testimony; 3) the Division impermissibly
changed its reason for termination during the trial, depriving defendant of due
process; and 4) the trial court incorrectly barred defendant's mother from
testifying.
Collateral estoppel "bars relitigation of any issue which was actually
determined in a prior action, generally between the same parties, involving a
different claim or cause of action." State v. Gonzalez, 75 N.J. 181, 186 (1977).
Defendant argues the OAL hearing on Title Nine abuse allegations litigated issues
identical to the Title 30 termination trial because both relied on allegations of sexual
abuse and misconduct. Our Supreme Court has outlined the process for when a
Title Nine hearing may have preclusive effect on a Title 30 case. See N.J. Div.
of Youth & Family Servs. v. R.D., 207 N.J. 88 (2011). In R.D., the court stated
"three major but basic" steps for the tribunal to follow. Id. at 120.
First, the Title Nine court must provide advance notice
to the parties that, if supported by the proofs, it will
make its findings using the higher Title Thirty "clear
and convincing evidence" standard; that notice must be
clear and unequivocal, and must fairly and reasonably
advise the parties that any Title Nine determinations
made under the higher, clear and convincing evidence
standard will have preclusive effect in any subsequent
Title Thirty proceeding. Stated differently, the parties
must be on fair notice that they will have one
opportunity to litigate whether the parent is causing
A-1562-17T2
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harm to the child, and that opportunity will be during
the Title Nine proceedings.
Second, the Title Nine court must make clear to
the parties that, although the relief it may issue in the
Title Nine portion of the proceedings is, by its nature,
interim, the determinations made in respect of that
interim relief – particularly those concerning harm to
the child – may have preclusive effect on the final,
permanent relief arising out of a Title Thirty
proceeding. Third, and finally, to approximate parity in
the proceedings, the Title Nine court must relax the
time deadlines and, to the extent necessary, use in the
Title Nine proceeding the admissibility of evidence
standards applicable to Title Thirty proceedings.
[Id. at 120-21].
The record does not demonstrate the ALJ followed these procedural
guideposts nor that defendant requested the ALJ do so. Defendant argues
against R.D.'s application by citing factual differences between the cases: R.D.
involved an instance where the Division attempted to use collateral estoppel,
while this case presents the opposite scenario.
However, the Court's guidance in R.D. clearly prohibits the ruling
defendant seeks. Unless the tribunal follows the steps outlined above, "Title
Nine determinations cannot be given collateral or preclusive effect in any
subsequent and related Title Thirty proceedings." Id. at 93 (emphasis added).
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Accordingly, the trial court did not err in rejecting defendant's collateral
estoppel argument.
Defendant also argues the trial judge "pressured" his counsel into making
an appearance via telephone while sick. An examination of the record finds no
evidence to support this argument. Defendant's attorney stated ahead of time he
had no questions to ask of the children. In addition, the trial judge adjourned
the remainder of the scheduled proceedings on the day the children testified,
following their testimony, so that defendant's attorney could appear in person
for the remainder of the trial.
Defendant argues the trial court deprived him of due process because
"[a]fter learning of the ALJ's decision reversing the substantiation of sexual
abuse, [the Division] altered the manner in which it attempted to proceed with
the trial." However, defendant did not raise the issue at trial, and therefore
cannot raise this issue on appeal. State v. McNair, 60 N.J. 8, 9 (1972); State v.
Johnson, 203 N.J. Super. 127, 133 (App. Div. 1985).
Next, defendant wanted his mother to testify to rebut Dr. Katz. Defendant
requested she testify via telephone because of health concerns and because she
lived out of state. To allow testimony via telephone, a proponent must
demonstrate two elements: 1) there exists an exigency or special circumstances
A-1562-17T2
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compelling phone testimony over live testimony; and 2) there exists some
"circumstantial voucher of the integrity of the testimony" and the witness's
identity and credentials are known. State v. Santos, 210 N.J. 129, 141 (2012)
(citing Aqua Marine Products, Inc. v. Pathe Computer Control Corp., 229 N.J.
Super. 264, 275 (App. Div. 1988)). Here, neither the Division nor the Law
Guardian had ever spoken with defendant's mother. As such, neither party could
confirm her voice or identity via telephone, preventing defendant from
satisfying the second element of the test. Accordingly, the court did not
improperly deny the telephone testimony.
Defendant also makes three claims of ineffective assistance of counsel: 1)
trial counsel inappropriately agreed to appear by telephone during the children's
testimony; 2) trial counsel failed to sequester the Division's expert during the
collateral estoppel motion; and 3) trial counsel failed to object to the
introduction of reports of non-testifying experts.
Parents in a termination proceeding have a right to effective assistance of
counsel. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 303 (2007).
To state a claim for ineffective assistance, one must demonstrate: 1) counsel's
performance fell outside the broad range of professionally acceptable
performance; and 2) counsel's deficient performance prejudiced the defense –
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i.e., there exists a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. Ibid. Courts
recognize a "strong presumption" that counsel's assistance was reasonable and
effective. Ibid."[A]ppellate counsel must provide a detailed exposition of how the trial
lawyer fell short and a statement regarding why the result would have been
different had the lawyer's performance not been deficient. That will include the
requirement of an evidentiary proffer in appropriate cases." Ibid. Critically,
defendant does not identify any prejudice suffered as a result of the alleged
ineffective assistance. As a result, defendant cannot succeed on an ineffective
assistance claim.
Lastly, defendant argues the Division failed to satisfy the best interest
standard required in termination proceedings. To obtain termination of parental
rights, the Division must satisfy all four prongs of the following test:
(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
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serious and enduring emotional or psychological harm
to the child;
(3) The Division 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.
[N.J.S.A. 30:4C:15.1(a).]
These four prongs are neither discrete nor separate, but overlap "to
provide a comprehensive standard that identifies a child's best interests." N.J.
Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing N.J.
Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)). "The
considerations involved are extremely fact sensitive and require particularized
evidence that address[es] the specific circumstance in the given case." N.J. Div.
of Youth & Family Servs. v. R.G., 217 N.J. 527, 554 (2014) (alteration in
original) (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 28
(2007)). The Division must prove by clear and convincing evidence all four
statutory prongs. Ibid. We will not overturn a family court's findings unless
they were "so wide of the mark that the judge was clearly mistaken." G.L., 191
N.J. at 605.
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The first prong of the best interest test requires the judge to determine
whether "the child's safety, health, or development has been or will continue to
be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a). The
analysis examines the impact of harm caused by the parent-child relationship on
the child's health over time. N.J. Div. of Youth & Family Servs. v. P.P., 180
N.J. 494, 506 (2004). The analysis does not "concentrate on a single or isolated
harm or past harm" but rather focuses on "the effect of harms" arising over time.
In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The court is not
concerned only with actual harm to the children, but also with the risk of future
harm. In re Guardianship of DMH, 161 N.J. 365, 383 (1999). Further, the harm
need not be physical, as emotional or psychological harm may suffice. In re
Guardianship of K.L.F., 129 N.J. 32, 44 (1992).
Here, the judge found the children credible witnesses. Victor testified his
father acted violently towards his mother. In addition, he often hit him hard
enough to make him cry. His father scared him, touched him in the shower, and
made him undress and get into bed with him. Defendant paid his adult step-
daughter for sex so she could buy drugs. Sara testified defendant would touch
her vaginal area, and that she witnessed defendant choking her mother. Like
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Victor, Sara did not feel safe around defendant. These facts demonstrate
sufficient harm to the children in satisfaction of prong one.
Under prong two, the Division must demonstrate "not only that the child's
health and development have been and continue to be endangered, but also that
the harm is likely to continue because the parent is unable or unwilling to
overcome or remove the harm." K.H.O., 161 N.J. at 348. The Division may
satisfy this prong by demonstrating the parent's inability or unwillingness to
resolve issues that are detrimental to the child. See N.J. Div of Youth & Family
Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996). This prong
determines whether "the parent has cured and overcome the initial harm that
endangered the health, safety, or welfare of the child, and is able to continue a
parental relationship without recurrent harm to the child." K.H.O., 161 N.J. at
348 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).
Defendant's relies on his contention that prong one was not met by the
Division: if he did not harm the children, he could not resolve any harm. This
argument clearly lacks merit based upon the substantial evidence that defendant
harmed and endangered his children.
With the third element, the Division must prove it "has made reasonable
efforts to provide services to help the parent correct the circumstances which led
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to the child's placement outside the home and the court has considered
alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a). The
analysis "contemplates efforts that focus on reunification of the parent with the
child and assistance to the parent to correct and overcome those circumstances
that necessitated the placement of the child into foster care." K.H.O., 161 N.J.
at 354.
Throughout the course of the litigation, the Division offered defendant
therapy; in addition, the Division offered psychological and psychiatric
evaluations in an attempt to create a plan for reunification. Defendant failed to
accept these services and also lost contact with the Division for significant
periods of time. At one point, the Division requested a search of Delaware
records in an effort to locate defendant so it could work on reuniting him with
his children. The record demonstrates the Division made reasonable efforts to
assist defendant.
Lastly, the Division must demonstrate that "termination of parental rights
will not do more harm than good." N.J.S.A. 30:4C-15.1(a). The issue "is not
whether a biological mother or father is a worthy parent, but whether a chi ld's
interest will best be served by completely terminating the child's relationship
with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108
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(2008).
To satisfy this prong of the analysis, the Division must "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." N.J. Div. of Youth &
Family Servs. v. A.R., 405 N.J. Super. 418, 442 (App. Div. 2009). The Division
"must prove by clear and convincing evidence that separating the child from his
or her foster parents would cause serious and enduring emotional or
psychological harm." J.C., 129 N.J. at 19.
Here, the children both requested to stay with their brother and his
girlfriend. Both wished to be adopted by them, and expressed a strong desire
not return to their father's care.
Further, Dr. Katz testified defendant possessed a "lack of understanding
of boundaries, lack of judgment, lack of empathy, and failure to protect his
children's interests." The children's brother, on the other hand, developed a
strong attachment with them. According to Dr. Katz, removing the children
from their brother would cause significant, enduring, and catastrophic harm on
them. Defendant, however, could not mitigate the harm of removing the
children from their brother. Accordingly, we conclude the Division provided
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sufficient evidence to satisfy prong four.
Affirmed.
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