DCPP v. J.R.-R. AND G.R.-S., IN THE MATTER OF THE GUARDIANSHIP OF A.R.-R. AND G.J.R.-S. (FG-06-0015-19 and FG-06-0056-19, CUMBERLAND COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED) ( 2022 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-1127-20
A-1202-20
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.R.-R. and G.R.-S.,
Defendants-Appellants.
__________________________
IN THE MATTER OF THE
GUARDIANSHIP OF A.R.-R.
and G.J.R.-S., minors.
__________________________
Argued May 31, 2022 – Decided August 12, 2022
Before Judges Rose and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Cumberland County,
Docket Nos. FG-06-0015-19 and FG-06-0056-19.
Laura M. Kalik, Designated Counsel, argued the cause
for appellant J.R.-R. (Joseph E. Krakora, Public
Defender, attorney; Laura M. Kalik, on the briefs).
Beth Anne Hahn, Designated Counsel, argued the cause
for appellant G.R.-S. (Joseph E. Krakora, Public
Defender, attorney; Beth Anne Hahn, on the briefs).
Amy Melissa Young, Deputy Attorney General, argued
the cause for respondent (Matthew J. Platkin, Acting
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Amy Melissa
Young, on the brief).
Noel C. Devlin, Assistant Deputy Public Defender,
argued the cause for minors (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Meredith Alexis
Pollock, Deputy Public Defender, of counsel; Noel C.
Devlin, of counsel and on the brief).
PER CURIAM
In these consolidated appeals, defendants J.R.-R. (Jenny) and G.R.-S.
(George) separately challenge the termination of parental rights to their sons,
A.R.-R. (Alex) and G.J.R.-S. (Gabriel).1 The Division of Child Protection and
Permanency (the Division) brought the within guardianship action pursuant to
N.J.S.A. 30:4C-11 to -15.4, after filing an abuse or neglect action under N.J.S.A.
1
We use initials and pseudonyms for defendants, their children, and the
resource parents to protect their privacy interests. R. 1:38-3(d)(12). We also
refer to defendants and the resource parents by first names for the convenience
of the reader. We intend no disrespect in doing so.
A-1127-20
2
9:6-8.21 to -8.73. The Title Nine case led to a trial court finding abuse or neglect
by a preponderance of the evidence. We upheld that finding on appeal; our
Supreme Court reversed.2
Defendants' petitions for certification in the Title Nine action were filed
and granted after the guardianship trial started. Although the Court's opinion
did not issue until nearly ten months after the entry of a final and amended
judgment of guardianship, the parties agreed during the guardianship trial to
proceed as if the Court already had ruled in defendants' favor. Through
extensive negotiations, counsel made prodigious efforts to exclude or limit the
use of certain evidence to ensure the guardianship judge's decision was not
influenced by the trial court's Title Nine finding.
Defendants contend the efforts of counsel to limit what evidence the
guardianship judge could consider failed, and reversal of the December 3 and
December 22, 2020 guardianship judgments is warranted. We disagree,
persuaded the termination decision was not tainted by the initial Title Nine
finding but instead, flowed from the judge's appropriate analysis of whether
2
N.J. Div. of Child Prot. & Permanency v. J.R.-R & G.R.-R., Nos. A-490-18
and A-491-18 (App. Div. Oct. 28, 2019), rev'd and remanded, 248 N.J. 353(2021). Defendants advise G.R.-S. was improperly designated as "G.R.-R." in
the Title Nine action and ensuing appeals.
A-1127-20
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defendants were capable of parenting Gabriel and Alex well after Gabriel was
injured as an infant. Thus, we affirm the challenged judgments.
I.
To place the legal issues in context, we recount, chronologically, the
significant facts, not only from the testimony adduced at trial but the heavily
redacted record before us.
Defendants came separately to the United States from Guatemala. Both
primarily spoke Popti, a rare Mayan language. Jenny, now forty-two, grew up
in an agrarian society, did not attend school, and never learned to read or write.
George, now thirty-nine, attended school in Guatemala up to the fourth grade.
Defendants met in 2015 and began a committed relationship. Their sons,
Gabriel and Alex, were born in May 2016 and September 2018, respectively.
In March 2017, when Gabriel was nearly eleven months old, he was
running a fever for a couple of days and vomiting. By the time defendants
brought him to his pediatrician, Gabriel was in respiratory distress. The infant
was transported by ambulance to Inspira Medical Center in Vineland. From
there, he was transferred to the Nemours/Alfred I. duPont Hospital for Children
in Delaware, where he was diagnosed with bacterial meningitis, retinal
hemorrhages, bilateral subdural hematomas, acute hypoxic respiratory failure,
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sepsis and septic shock. Hospital staff noted Gabriel had bruises on his
forehead, temple, ear and eyelid, as well as small linear abrasions on the right
side of his face, inside his left ear, and in a neck skinfold. Based on a subsequent
skeletal survey, Gabriel also was diagnosed with an ulna fracture of the right
forearm that had not fully healed.
Gabriel's condition prompted a referral to the Division. During the
Division's investigation, defendants claimed to have no knowledge of how
Gabriel was hurt, but suggested he hit himself in the head with a remote control.
They also represented they were Gabriel's sole caregivers.
In April 2017, the Division filed a Title Nine complaint, seeking custody
of Gabriel. The Division alleged the infant's medical condition became
emergent due to defendants' delay in taking him to a doctor, and he had some
unexplained bruising. It also expressed concern about defendants' cognitive
capacity for safe parenting. The court placed Gabriel in the Division's custody
and granted defendants weekly supervised visitation.
Seven days later, Gabriel was discharged from the hospital and placed
with non-relative resource parents, A.R. (Art) and S.R. (Sue). Upon his release
from the hospital, Gabriel had to wear a neck collar and needed appointments
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with various specialists, including healthcare providers specializing in
ophthalmology and neurosurgery.
According to Rosalyn Soler, a Division caseworker, Gabriel was placed
with Art and Sue because of their childcare experience and ability to handle
Gabriel's medical needs. While exploring options for Gabriel's placement, the
Division asked defendants if any friend or family member could care for Gabriel.
Jenny offered her sister and brother, but these individuals were "ruled out."3 The
record is devoid of any other names defendants provided for Gabriel's
placement.
In April 2017, with defendants' consent, Gabriel traveled to Alabama with
his resource parents, and met Sue's niece, M.S. (Mary), as well as her husband,
T.C. (Ted). Thereafter, Mary and Ted routinely enjoyed extended visits with
Gabriel. And once Alex was born, Mary and Ted also visited with the younger
child. Typically, Mary and Ted visited with the boys once a month.
In May 2017, Gabriel was airlifted to duPont Hospital due to swelling in
his brain. He underwent emergency surgery to place a shunt in his head and
drain fluid from his brain. The following month, he was admitted to the hospital
3
When the Division later sought to reassess Gabriel's maternal aunt and uncle,
it could not contact them, as they purportedly returned to Guatemala.
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twice for issues related to his medical condition. Gabriel also required
occupational and speech therapy and needed to wear a helmet due to concerns
about him falling. 4
The Division arranged for defendants to undergo a series of parental
capacity evaluations with Dr. Katherine Pérez-Rivera. During the first set of
evaluations of the couple in 2017, Dr. Pérez-Rivera noted Jenny was "unclear as
to why [Gabriel] was hospitalized" earlier that year. Also,
when asked at what age did [Gabriel] sit up, crawl,
walk, talk, eat solids, [Jenny] did not provide any
answers. Instead, the Popti translator informed [Dr.
Pérez-Rivera] that [Jenny] was acknowledging
understanding the questions, but would only answer
that this was her first child ever and that she was a new
parent . . . and . . . had very limited education.
Dr. Pérez-Rivera determined Jenny's cognitive abilities were "poor."
When she evaluated George, Dr. Pérez-Rivera noted he also was "unclear
as to why" Gabriel was hospitalized in March 2017. George told her that the
day before Gabriel was hospitalized, he came home from work and "knew
[Gabriel] had a fever because [the child] was hot." George consulted with a
roommate about "what he should give" Gabriel for his condition and the
4
Gabriel was medically required to wear a helmet until May 2019.
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roommate advised George to "wait it out" until he saw the pediatrician the next
day. George admitted to following the roommate's advice. George stated he
had no way to take Gabriel's temperature then, having never owned a
thermometer. Further, George advised Dr. Pérez-Rivera he had no knowledge
of who caused Gabriel's injuries, but he "underscored . . . it could not have been
[Jenny]," as he believed Jenny was an effective caretaker. The doctor opined
George's cognitive abilities were in the "very poor" range.
Subsequently, Dr. Pérez-Rivera recommended Division services be
provided to defendants in Spanish, with the assistance of a Popti interpreter, and
that the Division refer defendants for private parenting lessons with Kathy
Agosto, a therapist. Agosto spoke Spanish, and the record reflects defendants
partially understood this language, although George was more fluent than Jenny.
Agosto agreed to conduct therapy sessions with the assistance of a Popti
interpreter to facilitate defendants' understanding during the sessions. She
began working with the couple in September 2017, and within a month, she was
utilizing the services of a Popti interpreter.
By November 2017, Agosto provided a treatment summary noting
defendants were "always cooperative and engaged" in sessions, but "their
knowledge and experience with parenting [was] limited." They advised Agosto
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"this [was] their first child and . . . neither of them had ever helped care for a
sibling in the past."
Agosto recommended Jenny begin some type of educational program,
such as a literacy program. The therapist also shared "a few free apps" with
defendants to assist them in parenting and informed them of programs provided
through local libraries. Although Agosto was unsure if defendants could access
the recommended programs, "due to their lack of identification documents," she
confirmed there was an online Popti translation website to help Jenny "begin her
language instruction." Agosto hoped if defendants could "read the Spanish
language, elementary parenting texts might be found for them." Further, she
encouraged defendants to learn more about parenting from family members who
were parents themselves because defendants were "ignorant of the most basic
child rearing techniques."
In December 2017, Agosto issued another treatment summary. She noted
the Popti interpreter assisting defendants was "very helpful," but defendants
continued to display a "very limited general fund of knowledge." Agosto
encouraged Jenny to learn the alphabet and "practic[e] her letters since she [was]
unable to write her name." Agosto believed Jenny needed to "move beyond" her
lack of a formal education "if she expect[ed] to care for a child." Further, Agosto
A-1127-20
9
suggested George should retrieve Spanish books from the library, if possible;
she knew of no books on parenting in Popti. Agosto also advised George to
consider enrolling in an English as a Second Language (ESL) class offered at a
nearby library.
During the next two months, Agosto informed Jenny of a free ESL
program nearby where she could "obtain a picture book with . . . words in
Spanish and . . . English." Further, she instructed defendants on: the use of a
thermometer in case Gabriel ran a fever; how to download apps on their "Smart
Phone"; and how to plot out a bus route, considering defendants did not drive or
have a car. Agosto described therapy sessions as "slow work due to . . . many
cultural challenges." Although she stated defendants "need[ed] much more"
than what she could offer them in weekly hourly sessions, she confirmed
"[m]ultimodal modalities of instruction will continue to be explored." She
hesitated to recommend defendants' reunification with Gabriel, as the child was
expected to "continue to have very serious medical needs."
When Agosto learned Jenny was pregnant with Alex, Agosto encouraged
defendants to "utilize the internet and their supports in the community to
augment their understanding . . . of parenting and gain[] familiarity with all they
will need to guide and nurture their children." Additionally, she told defendants
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it was necessary for them "to demonstrate parenting competence," because the
Division would want to ensure their home was a "safe environment," particularly
since it had been unable to determine who or what caused Gabriel's injuries.
In March 2018, the court found reunification might soon be possible
because defendants were "engaged in services." Contemporaneously, Agosto
advised the Division she could not assist defendants any longer because they
had "plateaued." However, considering the Division's prior difficulty in
securing a willing provider to work with the existing English to Spanish to Popti
interpretation system, and Agosto's experience in assisting migrant workers, the
Division persuaded Agosto to resume working with defendants months later.
At the Division's behest, Dr. Pérez-Rivera re-evaluated defendants for
parental capacity when Gabriel was about twenty-three months old. In George's
April 2018 evaluation, the doctor preliminarily noted George communicated
with her in Spanish, having advised he was fluent and comfortable in speaking
this language during their sessions. She reported George "expressed himself in
Spanish effortlessly and quite adequately."
George advised Dr. Pérez-Rivera that Jenny was four months pregnant.
He also disclosed for the first time she had two other children from a prior
relationship, and those children were living in Guatemala. He apologized for
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not revealing this information sooner, explaining the lack of disclosure was "due
to a misunderstanding."
Although George acknowledged he was not Gabriel's primary caretaker
before the child's removal, he told Dr. Pérez-Rivera that Gabriel "skipped
crawling and started walking at [seven] months." He also stated Gabriel "began
sitting up at [seven] months." Asked about this discrepancy, George simply
stated Gabriel was his first child. When the doctor further probed his knowledge
of developmental milestones, George stated children generally begin to walk at
about eighteen months, "babble" between eighteen months and two years old,
and could only be understood at age three. Dr. Pérez-Rivera noted George could
not explain why milestones he reported for Gabriel were "considerably
inconsistent with his reports on the developmental milestones of the typical
developing child."
Dr. Pérez-Rivera geared part of her clinical interview to exploring
George's "present understanding of [Gabriel's] . . . significant injuries." In that
regard, she stated George claimed Gabriel was a "healthy and typically
developing child" and Jenny felt the same way. When the doctor asked George
to explain what would happen if Gabriel sustained a blow to his head without
his helmet, George replied this would not be good for his son "since he had a
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fever and had to go to the hospital." George also admitted that because he did
not know the English language he was "unable to communicate with [Gabriel's]
treatment providers."
During Jenny's second parental capacity evaluation, Dr. Pérez-Rivera
reported Jenny demonstrated an "improved ability to understand and speak
Spanish," but remained "best able to express herself" in Popti. According to the
doctor, Jenny "denied understanding why [Gabriel] was found eligible for Early
Intervention Services . . . [and] denied understanding why [the child was]
wearing a helmet." Although she was informed the helmet was needed to protect
Gabriel's head, "this did not make sense to her as she [saw] him as a healthy
boy." Jenny also told the doctor she was "confident she was able to care for"
Gabriel. When the doctor asked Jenny to tell her about "all the children she had
ever birthed, [Jenny] reported that [Gabriel] was her only child" and that she
was pregnant with her second child.
Jenny was observed with Gabriel during her evaluation. Dr. Pérez-Rivera
noted Jenny placed the toddler on her lap facing away from her and "she rarely
made any verbalizations through the [twenty-five] minutes that they were
together, and only made eye contact with him when she was facing him while
feeding him." The doctor found while Jenny "successfully fed [Gabriel], she
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sometimes did not read the nonverbal cues" the child gave Jenny, "such as not
being interested in feeding all at once."
Dr. Pérez-Rivera also observed defendants jointly with Gabriel. She
prompted the couple to change Gabriel's diaper. When they complied, the doctor
saw George pushing and pulling Gabriel's penis. She further noted George
began a game insinuating that he had pulled [Gabriel's]
penis off[,] followed by a gesture in which he tossed the
penis into the air. This went on for about [forty-five]
seconds. [Jenny] was observed laughing throughout all
this. She was also observed touching [Gabriel's] penis
and pushing it inwards, albeit only once.
Dr. Pérez-Rivera notified caseworker Soler about this incident.
After conducting the second set of evaluations, Dr. Pérez-Rivera issued
reports on each defendant, noting George's parenting capacity had improved
since the first evaluation. She recommended, in part, that he receive a copy of
Jenny's April 2018 parental capacity evaluation because he still "perceive[d] . . .
[Jenny] as being a 'good caretaker,' which [was] contrary to" the doctor's
findings. Dr. Pérez-Rivera also highlighted the importance of sharing her
findings with George due to the impending birth of the couple's second child.
Dr. Pérez-Rivera recommended any services be modified to account for
George's "extremely limited cognitive functioning" and that the Division
consider the results of her updated evaluation in deciding whether it should
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"retain [its] present case goal, which was reported to be 'Termination of Parental
Rights.'"
Regarding Jenny, Dr. Pérez-Rivera recommended services be geared to
"take into consideration her limited cognitive functioning," that Jenny receive
assistance in learning how to read, write, and become fluent in Spanish, and the
Division "consider out of home placement for" Gabriel. Further, the doctor
concluded Jenny withheld information from her and Agosto about having given
birth to two children in Guatemala, and that Jenny had not told George she gave
birth to a third child in the United States in 2014.5
In April and May 2018, Art and Sue advised the Division they wanted
Gabriel to remain in their family. They also informed the Division Mary wanted
to adopt Gabriel, but if this was not allowed, they would adopt Gabriel. The
5
The record reflects the Division learned about Jenny's three older children in
February 2018, when it received a referral confirming Jenny initiated prenatal
care for her unborn child, Alex. That month, Soler asked Jenny about the son
she birthed in 2014 but Jenny denied this child existed. Soler pressed the issue
and told Jenny the Division might request a DNA test to rule out she was this
child's mother. At that point, Jenny pleaded with Soler and her supervisor, in
Spanish, "[p]lease do not do this. [George] does not know about that child and
if he finds out[,] he will leave me. . . . I gave birth to this child and gave him
away." Upon further investigation, the Division determined Jenny had not seen
or contacted her son since his birth in 2014.
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following June, Mary confirmed to Soler she was interested in adopting not only
Gabriel, but Jenny's unborn child.
II.
On June 5, 2018, following the conclusion of a five-day bench trial during
which Drs. Allan DeJong and Joseph Scheller testified for the Division and
defendants respectively, the trial court found by a preponderance of evidence
defendants abused or neglected Gabriel while he was in their care, per N.J.S.A.
9:6-8.21.6 J.R.-R., 248 N.J. at 364-65. The trial court's finding was based on
the burden-shifting paradigm adopted in Division of Youth & Family Services
v. D.T., 229 N.J. Super. 509 (App. Div. 1988), the use of which the Court
6
N.J.S.A. 9:6-8.21 provides, in relevant part, that an abused or neglected child
is one
whose parent or guardian . . . (1) inflicts or allows to be
inflicted upon such child physical injury by other than
accidental means which causes . . . protracted
impairment of physical or emotional health . . . (4)
or . . . whose physical, mental, or emotional condition
has been impaired or is in imminent danger of
becoming impaired as the result of the failure of his [or
her] parent or guardian . . . to exercise a minimum
degree of care . . . in providing the child with proper
supervision or guardianship, by unreasonably inflicting
or allowing to be inflicted harm, or substantial risk
thereof . . . .
[N.J.S.A. 9:6-8.21(c)(1), (4).]
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declared was structural error when it invalidated the finding. J.R.-R., 248 N.J.
at 365, 377-78.
Once the factfinding trial ended, the trial court accepted the Division's
change in permanency plan for Gabriel for termination of defendants' parental
rights. The court found services provided by the Division had not significantly
improved defendants' ability to provide safe parenting.
In July 2018, Art and Sue again advised the Division that Mary was
looking to adopt Gabriel but if that was not possible, they would "keep" Gabriel.
The next month, the Division instituted the guardianship action, and Gabriel's
Title Nine action was terminated.
Additionally, during an order to show cause hearing in August 2018, the
Law Guardian expressed concern that defendants repeatedly removed Gabriel's
helmet during supervised visits. Based on this representation, the same judge
who conducted the Title Nine trial directed Gabriel's helmet not to be removed
during supervised visits without court order. The judge stated he would lift this
restriction once a medical professional recommended it.
III.
Alex was born in September 2018. A Division caseworker reported Jenny
did not know how to hold or burp Alex. The caseworker noted Jenny failed to
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support the baby's head when she held him and when the caseworker placed the
infant on Jenny's shoulder to be burped, Jenny patted Alex's bottom until the
caseworker corrected her. During Jenny's subsequent visit with both children in
September 2018, a caseworker continually reminded her how to hold Alex.
Also, the caseworker educated Jenny on how to prepare the baby's formula after
Jenny stated she was unsure how to do so.
Six days after Alex's birth, the Division instituted a Title Nine action,
alleging the newborn was at risk from the same inadequate parenting that
remained a concern for Gabriel. The court granted the Division's request for
care and supervision of Alex, permitted the Division to place the infant with Art
and Sue (where Gabriel continued to live), and granted defendants weekly
supervised visitation with the newborn. That same day, Jenny asked a
caseworker if she could get her children back if she explained "what happened"
to Gabriel; but Jenny declined to disclose any details about Gabriel's injuries at
that time.
In October 2018, a caseworker asked Jenny if she and George had time to
think about whether "they wanted to tell the Division what happened with"
Gabriel. Jenny replied she wanted to talk with George "so they can figure out
how to communicate it." However, George separately confirmed he wanted to
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discuss what happened to Gabriel.
George revealed Jenny went to work with him in March 2017 and the
couple left Gabriel with "the lady" who watched the baby. When defendants
subsequently retrieved Gabriel and noticed the infant's condition, they suspected
the child fell while in the babysitter's care. George apologized for not disclosing
this sooner, explaining defendants had not wanted "the lady" to get into trouble.
He subsequently told a caseworker he and Jenny "should have been honest from
the beginning as they [had] been away from their children a lot longer than they
thought" they would be.
The Division interviewed the babysitter after defendants identified her by
name; she admitted watching Gabriel when he was three and four months old
but denied injuring him. She also advised the caseworker there were issues with
defendants' parenting. The Division was unable to conclude Gabriel was injured
while in the babysitter's care.
During a court hearing in October 2018, the Deputy Attorney General
(DAG) notified the judge that bonding and psychological evaluations were
scheduled, and defendants had begun a new "one-on-one parenting education"
program named "Casa Prac." Counsel also advised the judge defendants had
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disclosed Gabriel was injured while in his babysitter's care. In response to this
development, the judge stated:
I have absolutely no recollection throughout the course
of this entire procedure, FN and FG, 7 of hearing
anything about a babysitter. My recollection and
understanding of the entire case since this court has
been involved is that both parents have consistently
stated that they had no idea what happened.
That was not just to the Division but that was to
medical personnel, when [Gabriel] was . . . being
treated by the . . . neurologist at the . . . facility. So,
this is news to the court.
[(Emphasis added).]
Considering the status of the case and anticipating the guardianship trial
would soon commence, the Law Guardian asked the judge not only to order
defendants and the children's resource parents in New Jersey to participate in
bonding evaluations, but also to allow Mary and Ted to be included in the
process. Defendants' attorneys objected, expressing concern Gabriel would be
"farm[ed] out . . . to another state," namely Alabama, where Mary and Ted
continued to live. Defense counsel questioned why Gabriel was not being
removed from his existing placement if Art and Sue no longer wanted to adopt.
7
The judge's mention of "FN" and "FG" matters refers to the Title Nine and
Title Thirty proceedings, respectively.
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The Law Guardian asked the judge not to foreclose the option of having
Gabriel placed with Mary and Ted, arguing, "[s]ome of our clients have no
options and we have two." Referring to Alex, the judge asked, "[w]hat about
the sibling? There's [a Title Nine case]. Is the sibling being considered with . . .
alternate parent[s] . . . [o]r are we looking to . . . separate the siblings?" The
DAG represented Mary and Ted "would be willing to take both" children.
Additionally, the DAG assured the court and counsel there was no plan for
Gabriel to be moved at that time. She stated,
the idea that [Art and Sue] don't want to adopt him is
ridiculous. We've been saying all along that they will
adopt him; they were just proposing another plan. As
[the Law Guardian] said, there's two plans for this child
and the court can determine which plan is more
appropriate at the guardianship trial.
After argument concluded, the judge ordered that Gabriel not be moved
"out-of-state without [him] . . . or some other Superior Court judge signing off
on it." Also, anticipating defendants' parental rights might be terminated and a
judge would need to determine "who may be able to mitigate whatever harm is
done to the child," the judge directed the bonding evaluations to include not only
Gabriel's resource parents but "the potential out-of-state adoptive family."
Further, the judge directed any evaluations of the New Jersey and
Alabama resource parents be kept separate, not "intermingl[ed,]" so as "to keep
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it clean." He also allowed defendants time to request a "follow-up assessment
by their own expert" and offered to consider a "motion in limine . . . as to . . .
the admissibility of" the report of the Division's expert "concerning the alternate
placement." Additionally, over defendants' objection, the judge ordered without
prejudice that Mary and Ted could be present for an upcoming mediation session
between Art, Sue, and defendants. The judge stated, "[t]here's no harm to
mediation. Nobody is forced to agree to anything."
In November and December 2018, Art and Sue confirmed to Dr. Pérez-
Rivera during bonding evaluations they remained willing to adopt Gabriel
should defendants' parental rights be terminated, and they were willing to adopt
Alex if he became legally free. Around this time, Alabama licensed Mary and
Ted as resource parents.
IV.
On January 22, 2019, after the parties engaged in mediation, defendants
agreed to a voluntary surrender their parental rights to Gabriel to Art and Sue.
With the benefit of counsel, defendants testified their identified surrender was
made knowingly and voluntarily. The judge credited their testimonies and
accepted the surrender.
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The next month, Art and Sue told a Division caseworker that after they
adopted Gabriel, they planned to keep his name, albeit with a different spelling.
They also advised the caseworker that if they became incapacitated, Mary was
prepared to assume the role of Gabriel's caretaker. In March 2019, Art and Sue
informed their caseworker they were in contact with their adoption attorney.
Around this time, Dr. Pérez-Rivera assessed defendants' parental skills
relative to Alex. Following her evaluation, Dr. Pérez-Rivera issued a report
stating, "[i]t is highly recommended . . . [the Division] continue to pursue the
present case goal, which is 'Termination of Parental Rights.'"
In April 2019, the judge approved the Division's permanency plan to
pursue termination of defendants' parental rights as to Alex, followed by
adoption. The judge found "[b]oth parents lack the minimum level of parenting
ability to safely care for the child despite the provision of numerous services by
the Division." Once the Division filed a guardianship complaint relative to
Alex, the judge terminated the corresponding Title Nine action.
V.
At a hearing in June 2019, counsel alerted the judge that while undergoing
counseling with a Division provider, defendants claimed they did not realize
they surrendered their parental rights to Gabriel. The judge responded, "there’s
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not one shred of credible evidence that would cause this court, then or now, to
determine that [defendants] were . . . misled by either one of their attorneys."
He added, the surrender was "knowing and voluntary . . . with the advice of good
counsel." The judge also noted defendants testified they were "satisfied with
the services of their attorneys" and they "indicated . . . they had sufficient time
to discuss this matter with their attorneys." Nevertheless, because he could not
foreclose the possibility of vacating the surrender, the judge directed new
counsel to assume defendants' representation. Approximately two weeks later,
successor attorneys were appointed for defendants.
Subsequently, the Law Guardian moved to vacate the identified surrender,
claiming Art and Sue currently wished to withdraw from consideration as
Gabriel's primary adoptive parents, due to their age, health issues, and the
number of children they already had. According to the Law Guardian, Art and
Sue hoped Gabriel and Alex would be adopted by Mary and Ted.
On August 19, 2019, the judge granted the Law Guardian's request to
vacate the identified surrender, without objection from the defense or the
Division. At that hearing, defense counsel alleged Art and Sue "perpetrate[d] a
fraud on the court"; counsel requested a plenary hearing to address the resource
parents' "material misrepresentations." Jenny's attorney specifically urged the
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24
court not to permit visits between the boys and Mary and Ted, arguing the couple
should not "benefit from any misrepresentations . . . given to" the court.
Further, George's attorney contended the judge should place the boys in a
different New Jersey resource home where they might be adopted. But neither
defense attorney offered the name of an individual who might serve as an
alternative placement. By this time, Gabriel had been in placement for almost
two-and-a-half years and Alex had been in placement for close to a year.
The Law Guardian denied Art and Sue misrepresented their intentions
about Gabriel. She argued that at the time of the identified surrender, Art and
Sue anticipated adopting Gabriel and "would still adopt . . . if [the court] decided
that the out-of-state relatives were not appropriate, or acceptable . . . because
they love and are committed to these children."
After recapping defendants' testimony from the identified surrender
hearing, the judge reiterated his finding that defendants "fully understood . . .
they were surrendering irrevocably their rights to be the parents . . . of
[Gabriel]." Also, in response to the Law Guardian's requests that he appoint
guardians ad litem for defendants and have them undergo competency
evaluations — requests not supported by the defense — the judge stated, "there
is not any competent evidence before this court that suggests . . . [defendants]
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25
do not have the competency to assist in their own cases, and adequate[ly]
participate in this litigation." The judge noted defendants had "faithfully and
regularly engaged with their . . . service providers . . . and [been] cooperative
with the court."
Further, the judge rejected defendants' requests for a plenary hearing and
the elimination of visits between the children and Mary and Ted. He found Art
and Sue had "always held themselves out, up until recently to be the primary
adoptive parents. It was not a secret. It was discussed not only in chambers but
placed on the record that there were these relatives from Alabama that were
interested in adopting [Gabriel] as well." He added, "[i]t was always expressed
to this court both in chambers and on the record that [Art and Sue] were the
primary adoptive parents, but were clearly open to having the folks from
Alabama be the backup plan." Moreover, the judge stated he was "not . . .
looking to have an 'I got you' moment for individuals who have done nothing
but put the children's best interest at heart."
However, because the judge found the identified surrenders were
"predicated on the understanding" Art and Sue, "either together [or] individually
would adopt," and they no longer were willing to be the primary adoptive
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26
parents, the judge vacated the surrender, reinstated Gabriel's case under the
guardianship docket and consolidated it with Alex's guardianship case.
Based on the Division's revised plan to terminate defendants' parental
rights, followed by adoption with either Art and Sue or Mary and Ted, the judge
also ordered any outstanding bonding evaluations to include the boys' current
New Jersey resource parents as well as their prospective resource parents in
Alabama. Importantly, before concluding the hearing, the judge stated:
[Alex] and [Gabriel] have only known [Art] and [Sue]
as their resource parents . . . since [Gabriel's] initial
removal as well as [Alex's] initial removal shortly after
his birth, and due to regular visits and interaction, [the
boys] also are to some degree familiar with the resource
parents in Alabama.
I find short of an emergent need for removal, that
neither [Gabriel] nor [Alex] should be removed or
separated from these current resource parents, or those
other two folks from Alabama, providing that the
appropriate checks and balances under state law and
interstate law [are] satisfied.
These children are not to be removed to any other
home other than those four individuals, absent
emergency, operation of law, or further order of the
court. I find . . . that is what's in the best interest of the
children to at least maintain some semblance of the
status quo.
If the Division in the meantime removes those
children to Alabama, the Division will be solely
responsible for providing [Jenny] and [George]
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27
with . . . supervised visitation as to both of those
children or either of those children once a week. They
are entitled to supervised visitation. [Gabriel's]
visitation is immediately reinstated. All visitation with
[Gabriel] and [Alex] shall be supervised and conducted
at least once a week effective immediately.
[(Emphasis added).]
Unfortunately, the August 19 order did not fully capture the judge's
directives and only stated, in part, "[s]hort of an emergency removal, [Alex] and
[Gabriel] shall not be removed from their current resource parents." Stated
differently, the order made no mention of the judge having allowed the boys to
be placed with their prospective resource parents in Alabama.
Several weeks later, the Division removed the children to Alabama to
reside with Mary and Ted. When the parties next appeared in court in October
2019, defense counsel asked a newly assigned judge to conclude the children's
move to Alabama was contrary to the August 19 order as no subsequent order
had been entered on an emergent basis to allow the move. Understandably, the
Law Guardian and Division disagreed, claiming defendants' position was
inconsistent with what the prior judge ordered. The Law Guardian urged the
court to "listen[] to CourtSmart or . . . hav[e] a conversation with [the judge who
presided over the August 19 hearing]" to resolve the dispute.
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28
Relying on the language contained in the August 19 order, the newly
assigned judge expressed "concern about the way this took place short of an
emergency." However, she declined to order the boys' return to New Jersey, and
later directed a recording of the August 19 hearing to be released to counsel.
The judge also granted the joint request of the Law Guardian and the
DAG, with consent of defendants' counsel, to modify the children's weekly
visitation schedule. Specifically, the judge ordered defendants to have
supervised visits twice a month over long weekends, so visits would occur on a
Friday and the following Monday, understanding the boys would be flown to
New Jersey for the visits. As Jenny's attorney aptly noted, this modified
schedule "still essentially work[ed] out to once a week."
At a hearing conducted a few weeks later, the judge found the Division's
permanency plan for the boys' adoption by their Alabama resource parents was
"appropriate and acceptable." She scheduled the guardianship trial to commence
later that month. Also, without objection from defense counsel, the judge
executed an amended August 19 order "to correct the portion of the order
regarding [the children's] removal to the State of Alabama." The amended order
accurately reflected the prior judge's decision and provided, in part, "[s]hort of
an emergency removal, [the children] shall not be removed from their current
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29
resource parents or the potential resource parents in Alabama." (Emphasis
added).
In anticipation of trial, Dr. Alan Lee conducted psychological evaluations
of defendants. He also performed bonding evaluations between them and
Gabriel and Alex. Each evaluation was conducted with the assistance of a Popti
interpreter. Further, the doctor conducted bonding evaluations between Mary,
Ted, and the boys.
Noting defendants' cultural and language barriers, Dr. Lee opted to test
defendants for their psychological evaluations using only non-verbal IQ scales;
he found both parents achieved a score of "0.1 percentile . . . meaning
essentially 99.9% of all other people obtain[ed] a score higher" than them. The
doctor concluded these scores placed defendants in the "intellectually deficient
classification."
Dr. Lee opined Jenny had "rather significant cognitive and intellectual
limitations," "very chronic impairments in her cognitive and intellectual
functioning," "significant difficulties accurately perceiving, interpreting and
comprehending events around her," "poor problem[-]solving skills," and "[h]er
knowledge of parenting and childrearing [was] remarkably poor, despite
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30
having . . . children of very different ages born to her." He concluded Jenny's
"prognosis for significant and lasting change is poor."
Similarly, following George's psychological evaluation, Dr. Lee found
George had "significant cognitive and intellectual limitations," was "prone to
poor judgment and decision making" and "[h]is knowledge of parenting and
childrearing [was] deficient and poor." The doctor also determined George's
"prognosis for significant and lasting changes" was poor.
Because Dr. Lee opined Jenny and George were "not supported as . . .
independent caretaker[s] of the minor children at this time and within the
foreseeable future," he recommended "permanency planning for the minor
children besides reunification" to their birthparents. Dr. Lee also concluded
defendants should undergo neurological evaluations "to survey for structural or
organic etiology" for their "personal benefit, but not for the purpose[] of
reunification."
After Dr. Lee conducted his comparative bonding evaluations, he
concluded the boys did
not have a significant and positive psychological
attachment or bond with [their birthparents]; related to
this, there is a low risk of either child suffering severe
and enduring psychological or emotional harm if the
child[ren]'s attachment and relationship with [their
birthparents] is permanently ended. Both children are
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31
in the process of forming a significant and positive
psychological attachment and bond with the proposed
caretakers, [Ted] and [Mary], and assuming all else
equal and the additional passage of time with the
children living with them, the children are expected to
form a significant and positive psychological
attachment and bond with . . . [Ted] and [Mary], and
then be at a significant risk of suffering severe and
enduring psychological or emotional harm if the
child[ren]'s attachment and relationship with [Ted] and
[Mary] is then permanently ended. . . . Permanency is
unlikely to be achieved with [Jenny] or [George].
Permanency can be readily achieved with the proposed
caretakers, [Ted] and [Mary], who have stated their
wish and desire to provide permanent care, and to adopt
the children if they are legally free for the same. This
is the most supported permanency plan . . . .
Notably, Dr. Lee was aware and considered that when he performed the
bonding evaluations in August 2019, Gabriel had not visited with defendants in
several months, due to the preceding identified surrender. But Dr. Lee also knew
Alex continually visited with defendants since birth, and neither child had lived
with Mary or Ted on a full-time basis.
VI.
The guardianship trial commenced in November 2019 before another
newly assigned judge. During the trial, the Division called various witnesses,
including Dr. Lee, the only expert to testify, and caseworker Soler. The Law
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32
Guardian called Agosto and Art as witnesses, and Jenny testified on her own
behalf.
All counsel stipulated to Dr. Lee's expertise in clinical psychology, and
he testified his opinions were provided within a reasonable degree of
psychological certainty. Consistent with his earlier evaluations, Dr. Lee
testified that if Gabriel and Alex were returned to defendants, and despite that
Alex had no significant medical needs, both boys would be at a "heightened
risk" for having their medical, educational, and nurturing needs neglected.
Dr. Lee stressed the boys were "very young, helpless, dependent children"
"who count on the adult providing consistency, stability, protection, nurturance
and support," yet with Jenny's "very low cognitive and intellectual functioning,"
it was likely Jenny's "ability to consistently meet the needs of these very young
children" would be jeopardized. He stated her impulse control disorder would
likely compromise her ability to be a minimally adequate parent to the young
boys, and her dependent personality would affect her capacity to parent. Dr.
Lee opined Jenny's "capacity to cope" was "poor," her level of insight was
"[v]ery limited," and she "struggle[d] in following through, even when given
very clear directions."
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33
The doctor also observed Jenny's answers to questions about
developmental milestones for children generally were "rather erroneous." By
way of example, he noted that when he asked her when most children start to
walk, she initially responded "three or four years. And then she changed her
answer saying it was five or six years. And then she said it might be one year."
Additionally, Dr. Lee testified Jenny "struggled with some fairly unstable
residence[s] in recent times" and "relocated a number of times in recent years."
Noting Jenny received various services from the Division for well over two
years by the time of his evaluation, Dr. Lee opined Jenny would not "become a
minimally adequate parent within the foreseeable future." He concluded her
"cognitive and intellectual issues are essentially lifelong. And they are not
amenable to any kind of significant changes."
Dr. Lee testified, too, that despite her cognitive deficits, Jenny said she
felt ready to care for Gabriel and Alex on a full-time basis. Further, she
communicated "it was her plan . . . not [to] use outside childcare services, but
instead to be at home with the children . . . and [George] would work." Dr. Lee
testified he "did not support [Jenny] . . . being an independent caretaker of either
of these children."
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34
Additionally, Dr. Lee testified that because George had "some significant
cognitive and intellectual limitations" he "did not support either child" being in
George's independent care and he was unable to support George "as an
independent caretaker . . . within the foreseeable future."
Dr. Lee deemed George's perception of situations as well as his basic
views and beliefs to be "rather immature," and "often times . . . very simplistic."
Further, Dr. Lee stated George's stress tolerance was "limited" and he was
"easily overwhelmed." Despite George's limitations, he, too, told Dr. Lee he
"was ready to take both . . . children on a full-time basis." George also informed
the doctor of his intent to continue working and have Jenny provide childcare
for Gabriel and Alex if he were reunified with the boys.
Turning to his bonding evaluations, Dr. Lee reiterated he "did not support
reunification of either child with either birth parent." He testified "there is not
a significant bond of either child with either birth parent. So[,] there's [a] low
risk of severe and enduring harm for either child if their relationship with birth
mother and birth father is permanently ended."
Dr. Lee testified, too, there currently "was not a significant and positive
bond that was solidified for either [Gabriel] or [Alex] with [Mary or Ted]" but
"there was and is a likelihood of the children solidifying that bond with [Mary
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35
and Ted] in the coming months, especially if the children live with [Mary and
Ted]."
In December 2019, Art testified. He stated that before he received Gabriel
into his home, he was told the infant "had shaken baby syndrome." Jenny's
attorney objected to the "shaken baby" reference. The judge ruled, "I am not
going to accept that for the truth of its content. It's what he was told." Further,
the judge clarified, "what really matters here . . . is what he thought, not a back
doorway to get in a diagnosis that otherwise . . . is not evidential at this point."
Art also testified that before Gabriel was placed in his home, he was told
Gabriel had a neck brace and "was going to need some follow-up visits and . . .
some extensive care." Art stated "[t]here was [sic] a couple of times that
[Gabriel] had to be hospitalized during his first summer" and was flown to
duPont to have "an inner cranial shunt . . . placed." Jenny's attorney again
objected to Art testifying about Gabriel's injuries; the judge overruled the
objection, stating,
if you're caring for a child, you need to know if a shunt
was installed, for whatever reason, so that you are then
made properly aware of what to be looking for while
the shunt is still in. And that's very different than the
witness indicating why a shunt was needed.
She added, "head injuries can be accidental of course."
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Art testified there "generally wasn't a week that went by that there wasn't
some type of . . . appointment with a doctor . . . [a]nd there was early
intervention" for Gabriel, including occupational and speech therapy. Art also
confirmed that after Gabriel was placed in his home, Mary and Ted traveled to
see the infant monthly and "FaceTim[ed] daily or every other day" to engage
with Gabriel. He stated the couple also "immediately flew up and were . . . at
[his] home" after Alex was placed with Art and Sue. Art testified he and his
wife "are very connected with these two young boys," adding, "we will adopt
them if that's the . . . remedy."
On cross-examination, Art was asked when he and his wife decided it
would be better for Mary and Ted to adopt the children. He answered, "[i]t was
shortly after the identified surrender," explaining, "we have eight children and
we wanted to move forward and do what was best for [Gabriel] and [Alex]."
Before the trial continued in January 2020, the judge was informed
Gabriel was showing signs of distress during visits with defendants. She
allowed the Division to terminate Gabriel's visits "if he [was] distressed and
inconsolable and [defendants] and/or the caseworker [could] not redirect
[Gabriel] into engaging in the visit." As the trial progressed and the judge heard
similar concerns about Alex's reaction to supervised visits, the judge entered
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37
broader orders to allow visits to be curtailed if both children were "distressed or
inconsolable" and neither defendants nor a caseworker could "redirect the
children into engaging in the visit."
The Law Guardian called Agosto to testify in January 2020. Agosto
confirmed she used a Popti interpreter during her therapy sessions with
defendants even though by the time the trial commenced, they had "greatly
expanded their knowledge of Spanish." Agosto also testified she used written
materials, including "Nurturing Parenting Program[,]" in her sessions with
defendants and "began to use . . . simpler text" with defendants because "[t]he
simpler text had a lot of illustrations and very few words on a page. And it was
very easy to follow."
Agosto stated that when she asked defendants to tell her what they learned
from their therapy sessions, "[t]hey gave a standard answer that they would not
hit their children, and they would talk to them, if they needed to discipline
them." Agosto testified defendants "were not able to give back some of the
several parenting techniques and ideas that I was trying to give to them." She
tried to explain materials to defendants again, but "also . . . used videos and . . .
some other things to explain some of the ideas [she] was trying to give them" to
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38
afford defendants "a variety of ways of learning some of the material that [she]
was trying to present to them." Agosto stated:
I encouraged [defendants] to talk to other parents in
their family, to utilize TV shows . . . . I encouraged
them to use their smartphone to go on the internet to
learn about how children develop. What to do if your
baby has a fever. I encouraged them to expand their
general fund of knowledge by taking ESL classes and
by expanding their social network, so . . . they would
interface with other families. I tried to use . . . many
different ways of communicating with them . . . . I
found that there was a Popti app on the phone. I
encouraged them to get books from the library. I told
them how [they] could get a library card . . . . So, I
tried to be quite thorough in my attempts to help them
understand what they needed to effectively parent their
children, not just relying on the book.
Agosto was asked if she was alerted to any concerns about defendants'
supervised visits with the boys. She recalled a Division worker advising her to
"address the issue of fondling because [the Division] had a concern that
[George] had been fondling [Gabriel's] penis during a supervised parenting
evaluation." Further, Agosto noted that "[o]n another occasion, the Division
asked [her] to address a concern that [George] had inserted his tongue into
[Alex's] mouth"; when she did so, George responded, "but he's my flesh and
blood, I just love him so much." George subsequently agreed not to fondle
Gabriel's penis or put his tongue in Alex's mouth after Agosto explained this
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39
type of behavior was "stimulating" to a child. Agosto also stated, "there was
another concern that was brought up when the family removed the helmet for
[Gabriel], which he require[d] for his medical condition."
Asked on direct examination if Agosto knew of "any other modality" of
treatment she could recommend for defendants to "improve their parenting to a
standard where they could be reunited with their children," Agosto answered, "I
don't believe so." On cross-examination, she admitted she was "frustrated . . .
as a clinician" because of defendants' "inability to understand . . . the primal
concern of this case." She stated that while she tried to help defendants "be
better equipped to be parents[,] . . . they were not getting the primary concept of
protection of children." On re-direct, Agosto confirmed her "main concern" was
defendants "did not understand risk factors."
When Soler testified for the Division, she confirmed she was a
permanency worker and an adoption worker between 2017 and 2019. She stated
the Division used a Popti interpreter to assist defendants with "all services and
evaluations." According to Soler, such services included "evaluations,
psychologicals, bondings, parenting, individual counseling, and . . . [providing]
updates on their children." Soler affirmed the Division also provided defendants
with "parenting skills training," transportation, and visitation.
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40
Additionally, Soler stated Gabriel was placed with his New Jersey
resource parents because Gabriel "needed a resource parent . . . familiar with
kids that are medically fragile. And . . . [Art's] resource family was." Soler also
testified defendants failed to provide the Division with the names of individuals
who could care for Gabriel, other than Jenny's sister and brother. She stated
these two relatives were "ruled out" because "they all were living in the same
home. They couldn't offer an explanation as to [Gabriel's] injuries either."
When Soler testified Gabriel's doctors suspected he was abused, Jenny's
attorney objected. The judge overruled the objection, finding Soler's statement
was not "offered for the truth of its contents, but . . . offered to show why the
Division became involved." As Soler's testimony continued and she attempted
to explain what the Division learned about Gabriel's injuries, Jenny's attorney
again objected. The judge observed:
This is almost a razor edge of information that's
going to be an issue throughout the litigation of this
matter. Which is whether these injuries are inflicted
within a reasonable degree of medical certainty or not.
Which is a very different issue than who inflicted, or
even trying to narrow down who inflicted them.
But to artificially have testimony about the
Division's involvement, medical care, after-care
needed, and a range of issues that come with any kind
of serious medical intervention for any human being.
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41
To pretend that some of the treatable injuries just
spontaneously appeared makes the record skewed.
So, I'm going to rule on your standing objection
by saying that it's not intended to create any inference
that the parties or somebody they were responsible
for . . . being with their child, and so they're responsible
vicariously for the actions of that other person.
That['s] . . . not what's inferred by describing the nature
of the injuries.
The judge made clear she understood the restricted purpose of Soler's testimony,
highlighting it was "not being introduced to make an inference that [defendants]
caused or allowed the injury to be caused by some third person."
As Soler's testimony continued, she stated that once Alex was born and
defendants learned he would not be released to their care, they asked the
Division, "if we tell you what happened to [Gabriel], would [we] be able to take
[Alex] home?" Soler recalled defendants later advised the Division Gabriel was
injured in his babysitter's care. She affirmed George "gave a couple of
explanations [as] to what could have happened to [Gabriel] while . . . the
babysitter was caring for him," such as the infant falling down the stairs.
However, Soler testified the Division's investigation did not lead it to conclude
the babysitter abused Gabriel.
Soler also described the supervised visits the Division offered defendants.
She stated that after the identified surrenders were vacated and visits with
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42
Gabriel were reinstated, he would become upset during visits and "hide." "[H]e
would cry that he wanted to go home" and "throw objects in the room." Soler
testified she also noticed "[t]here was a lot of overfeeding" during the visits,
"the kids climbed the ledge of the window" where visits occurred, and Gabriel
would jump on the couch "standing up," compelling a caseworker to tell
defendants "you have to tell him to get down." Soler stated defendants would
not address this type of misbehavior "without prompting from the Division."
Further, Soler noted "there were times . . . the parents were taking
[Gabriel's] helmet off . . . during the visits. So, they had to be redirected
multiple times, don't take the helmet off." Also, Soler stated during one
supervised visit, George put his tongue in Alex's mouth and was "flickering the
tongue inside his mouth." She said George did this after he "turned away . . .
from the supervisor, so the supervisor couldn't see what he was doing. But the
supervisor saw him through the mirror that was in the room . . . [a]nd was able
to tell him to stop." Despite these incidents, Soler testified when she
investigated alternative service providers for defendants' benefit, they told her
they did not want to pursue additional counseling because "they didn't feel they
needed any counseling. . . . They stated they had to work, and due to work
obligations, . . . they weren't interested in any counseling."
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43
According to Soler, defendants' proposed plan for reunification was
George "would continue to go to work and [Jenny] would be left in the caretaker
role" for the children. Soler believed defendants did not have "any other friends
or family members that could assist with caring for the children."
When Soler was asked how the boys were adjusting to their placement in
the Alabama resource home, she testified she visited the boys there and "both
seemed very comfortable and happy in the home." She attested neither child
exhibited any behavioral issues after the move, and she was unaware of any
concerns resulting from the Alabama placement. Also, Soler stated Mary and
Ted wished to adopt both children.
Following Soler's testimony, George's attorney notified the judge of an
agreement between counsel to modify the boys' visitation schedule again. Per
the attorneys' stipulation, visits were to occur every third week moving forward,
on Fridays, Saturdays, and Mondays, for two hours each day. George's attorney
explained this modification would "save the children from flying back and forth
on those other weeks."
Unfortunately, soon thereafter, visits shifted to a remote format, due to
the pandemic. Accordingly, Soler and her colleagues facilitated weekly phone
and video visits for defendants and the boys as the trial progressed.
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Due to the pandemic, the hearing on April 30, 2020 proceeded remotely.
Importantly, counsel utilized this hearing to address multiple potential
redactions to an exhibit containing Gabriel's medical records from the time of
his hospitalization in March 2017.8 Counsel extensively discussed redactions to
this exhibit while exploring the idea of not producing their medical experts from
the Title Nine trial, i.e., Drs. DeJong and Scheller, for the ongoing guardianship
trial. In that vein, counsel specifically addressed an offer from the DAG and the
Law Guardian to refrain from trying to prove who caused or inflicted Gabriel's
injuries or that defendants' delay in seeking treatment for Gabriel's March 2017
injuries "rose to the level of Title Nine abuse or neglect."
During the hearing, George's attorney told the judge, "I still have yet to
hear . . . there [are] no longer any issues of abuse and neglect." The judge
responded the offer from the Law Guardian or DAG "doesn't mean there aren't
issues of abuse or neglect, right[? T]hat's what prong one is, but they're not
trying to prove that [Gabriel's] injuries were inflicted." The Law Guardian
8
The record reflects the judge stepped off the bench for a period during the
April 30 hearing, without objection from counsel. During this time, the
attorneys continued their negotiations regarding redactions to Gabriel's medical
records.
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45
agreed, stating, "there's a risk of harm which falls within neglect, which is part
of prong one, but inflicted injuries [are] off the table."
Jenny's attorney remarked, "what I'm hearing right now, the DAG [is]
taking abuse and neglect 'off the table.'" The judge interjected, "hold on, . . . it
would almost be as though she's dismissing her case . . . if she says I can't prove
prong one, so I don't think that's exactly what she meant. I think she meant
inflicted injury, is that correct?" The DAG concurred with the judge's
understanding and confirmed she would not try to establish the four prongs of
the best interest test by trying to prove defendants inflicted injury upon Gabriel.
The DAG explained,
prong one . . . does not have to be within the confines
of abuse and neglect . . . . [I]t's a substantial risk of
harm[. O]r prong one is . . . has the child been
endangered by the relationship[. T]hat doesn't
necessarily require a Title [Nine] finding . . . so, . . . I
will agree that probably the more accurate word is
inflicted injury, and we will take that off [the table].
The DAG and Law Guardian further tentatively agreed they would not seek to
prove by clear and convincing evidence a third-party inflicted Gabriel's injury.
The judge continued to address this issue, explaining, "the Division can
prove the first prong [under N.J.S.A. 30:4C-15.1] without proving Title [Nine]
abuse and neglect . . . . Title [Nine] neglect is different than other forms of
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46
neglect and they're not trying to prove Title [Nine] neglect." The DAG again
concurred with the judge's analysis.
In summing up the proposal from the DAG and the Law Guardian with
respect to Gabriel's medical records, the judge stated,
so therefore, . . . you're not trying to get in [the medical
records] to prove that the parents either caused [the
injury] recklessly or knowingly or certainly purposely,
nor are you trying to prove that, based on the injury, the
parents delayed at bringing the child for medical care.
Once again, the DAG and Law Guardian agreed with the judge's
assessment of their proposal. But the Law Guardian stressed she would not
consent to an order limiting her case if defense counsel still intended to call Dr.
Scheller, explaining, "I'm not agreeing to let go of the idea of causation unless
Dr. Scheller's not coming in. . . . [W]e're working towards something, but [the
defense] today is saying, 'oh, I'm not agreeing that Dr. Scheller's not coming
in.'"
Following up on the judge's request to have the DAG communicate where
she stood, subject to the Law Guardian's "proviso," the DAG stated she and the
Law Guardian
now . . . would say [they] tentatively agree . . . they
will not . . . seek to prove causation of injury by [the]
parents nor to prove injury inflicted by the parents, and
the Division and Law Guardian tentatively agree they
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will not seek to prove a delay in seeking medical
attention.
The judge clarified, "[F]or said injury . . . right?" and the DAG replied, "Yes."
The DAG added, "[a]ny reference in prior testimony to the infliction or
causation is not for the truth of [the] matter but [for] understanding of the issues
and for the provision of services."
When the hearing ended, the judge entered an order, attempting to reflect
the status of the parties' negotiations. The order provided, in part:
On the condition that Dr. Scheller will not testify
[for the defense], the Law Guardian and Division will
not seek to prove causation of injury by the parents nor
to prove injuries were inflicted [on Gabriel] by parents.
The Law Guardian and the Division will not seek to
prove that the parents delayed in seeking medical
attention for the injuries.
Any references in prior testimony regarding the
infliction or causation of injuries are not for the truth of
the matter but for the witness's understanding of issues
and for the provision of services.
....
This matter shall return on May 19, 2020 . . . for
an additional case management conference. . . .
Counsel shall be prepared to argue any remaining
objections to evidence. Counsel shall also be prepared
to argue whether Dr. Scheller will testify. . . .
....
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Negotiations with counsel to continue.
[(Emphasis added).]
When the matter returned to court in May 2020, the judge conducted
another case management conference and entered an order which simply stated,
in part:
Defense no longer plans to call Dr. Scheller to
testify, given counsel's stipulation to P-46[, Gabriel's
Medical Records from duPont,] and in light of the
representation by the DAG and the Law Guardian that
they no longer seek to prove infliction or causation of
injuries, fault of the parents[,] or failure to seek medical
care.
In the ensuing months, counsel learned the Supreme Court granted
certification on Gabriel's Title Nine case. Accordingly, during a July 2020
hearing, defense counsel sought to adjourn the guardianship trial until there was
a decision by the Supreme Court on that matter. The DAG objected to
postponing the trial, stressing that while the source of Gabriel's injuries was
unknown,
that was not the only issue, not even the most prominent
issue. The issue is that after the injury occurred, the
Division started services with the parents, which
included . . . a number of different services provided.
And throughout that time, the experts said that
[defendants] were unable to parent either child, and
that's including [Alex], who has no medical issues.
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....
. . . [W]e don't need that abuse or neglect finding
for prong one because . . . more importantly, we've
shown that the parents are just not capable, . . . given
years of services.
The judge denied defendants' adjournment request without prejudice.
Because reversal of the abuse or neglect decision remained possible and
witnesses who had testified indicated an awareness of Gabriel's injuries, during
the July 2020 proceeding, counsel addressed what further redactions, if any,
should be made to existing exhibits. They also discussed the purpose for which
exhibits should be considered by the judge. The judge considered the parties'
evidentiary issues at length and entered an order that day, itemizing in great
detail the exhibits which were to be redacted and objections she overruled. Also,
the judge detailed, where applicable, which "statements [in exhibits] were not
offered to prove the infliction or causation . . . of injuries, or delay of medical
care," and noted certain statements "would be limited to show Agosto's
understanding of then current medical recommendations," while others were
"not offered for the truth of the matter asserted."
Trial resumed in October 2020 with Jenny testifying in person. During
her direct examination, Jenny testified she was "worr[ied] about the well[-]being
of [her] children. And what happened to [her] child, . . . the babysitter is to
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blame for." She also stated if the children were returned to her, she would "stop
working because [she] would like to take care of them."
Asked how many children she had, Jenny answered, "four children. Two
in Guatemala and the other two are [Gabriel] and [Alex] here." Jenny denied
giving birth to any other child. Based on this testimony, Jenny's attorney
promptly asked for a sidebar conference and for George to leave the courtroom.
The judge accommodated the sidebar, during which George's attorney stated, "I
believe that this witness may have perjured herself and . . . [Jenny's attorney] is
trying to cure that by not having my client in the room." The judge denied the
request from Jenny's attorney to have George exit the courtroom.
As Jenny's direct examination continued, her attorney asked Jenny to
describe what she learned during parenting classes with Agosto. Jenny
answered, "you don't leave children alone in a room because they can be scared
by something and I believe that you have to watch your children all the time."
Regarding opportunities she had for further counseling, Jenny admitted she was
no longer in therapy, but claimed this was "[b]ecause the people who are in
charge told us that we were finished with the therapist and . . . didn't have to go
back anymore."
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On cross-examination, Jenny conceded Soler offered her additional
counseling opportunities and other services multiple times, but she declined
those services. When counsel inquired if Agosto "at any point" told her she
"learned all the skills necessary to successfully parent on [her] own," Jenny
answered, "Yes."
Jenny also admitted to the DAG during cross-examination that she lied
about the child she birthed in 2014. She stated, "I want to apologize for my
behavior today. I lied in the beginning because I was afraid that [acknowledging
the child] would prevent me from getting [Gabriel and Alex] . . . back."
When George's attorney cross-examined Jenny, he asked her, "what is best
for your children?" The following exchange occurred:
Jenny: Yes, I do want the best for my children. But,
we're getting older and as we get older time is going by.
There come[s] a time when I take care of my children
now but then as they get older and I'm older they will
take care of me. I will be depending on them.
[George's attorney]: . . . [L]et me try that again. What
do you think is best for your children?
Jenny: The truth is I'm here in this courtroom because
I love my children. I love my family. I love my
children. And, one day when I am old, they will take
care of me.
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Following Jenny's testimony, George chose not to testify, and defendants called
no other witnesses.
VII.
On December 3, 2020, the judge issued a lengthy oral decision,
accompanied by a conforming judgment, finding the Division proved all four
prongs under N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The
judge also terminated defendants' visits with Gabriel and Alex.
As she rendered her opinion, the judge outlined her credibility findings.
She found Dr. Lee "very credible"; the judge also credited the testimony of
Agosto and Soler but found Jenny's testimony "demonstrate[d a] substantial lack
of credibility in terms of lying to stay out of trouble."
Ten days later, the judge denied Jenny's order to show cause seeking
restoration of visits. On December 22, 2020, the judge executed an amended
final guardianship order, amplifying her oral decision and addressing
defendants' objections to the initial guardianship decision. The amended order
left the termination decision intact.
Each party appealed from the guardianship judgments; we consolidated
their appeals. Further, we denied: Jenny's motion to restore visitation pending
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appeal; George's request for a stay pending a decision by the Supreme Court in
the Title Nine action; and his motion for summary disposition.
In September 2021, the Court unanimously reversed the Title Nine
decision and remanded the matter to the trial court for a new hearing. J.R.-R.,
248 N.J. at 378. In doing so, the Court rejected the burden-shifting paradigm
enunciated in D.T., 229 N.J. Super. at 517, which had allowed trial courts in
certain Title Nine cases to apply the doctrine of conditional res ipsa loquitur to
shift the burden of proof to the parents to prove their non-culpability, J.R.-R.,
248 N.J. at 372-73.
VIII.
On appeal, Jenny raises the following overlapping arguments:
POINT I. THE TRIAL COURT'S DECISION MUST
BE REVERSED BECAUSE [THE DIVISION]
FAILED TO ESTABLISH BY CLEAR AND
CONVINCING EVIDENCE THAT TERMINATION
WAS IN THE BEST INTERESTS OF THE
CHILDREN UNDER N.J.S.A. 30:4C-15 AND N.J.S.A.
30:4C-15.1.
A. The Trial Court Erred in Finding that the Division
Had Demonstrated, By Clear And Convincing
Evidence, That the Safety, Health or Development of
the Children Had Been or Would Continue to be
Endangered by the Parental Relationship with Their
Mother.
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1. The trial court erroneously disregarded the
parties' explicit agreement that medical neglect was
"off the table" and instead used it to demonstrate
parental incapacity to satisfy prong one, severely
prejudicing Jenny's defense.
2. Dr. Lee rendered an inadmissible net opinion
regarding Jenny's cognitive limitations and inability to
parent.
3. The trial court improperly relied on Dr. Lee's
net opinion concluding that Jenny was unable to parent
while disagreeing with him regarding his determination
that Jenny was cognitively disabled.
B. The Trial Court Erred in Finding that [The Division]
Had Demonstrated, By Clear And Convincing
Evidence, That Jenny Was Unwilling or Unable to
Eliminate the Harm Facing Her Children.
1. Jenny persevered with services despite being
faced with a hostile service provider who held
unreasonable expectations.
2. Jenny's lack of familiarity with American
parenting mores and values did not demonstrate mental
incapacity sufficient to satisfy prong [two].
3. [The Division] failed to demonstrate that
separating the children from their current resource
parents would cause serious and enduring harm.
C. The Court Erred In Holding That [The Division]
Proved That It Had Made Reasonable Efforts To
Provide Services To Help Jenny Reunify With Her
Children Because [The Division's] Own Expert and
Service Provider Admitted That The Services Offered
Were Inappropriate And Inadequate.
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1. [The Division's] [o]wn [e]xpert and [s]ervice
[p]rovider admitted that the services offered were
inappropriate, inadequate, and not sufficiently tailored
to meet Jenny's need.
2. [The Division] failed to provide adequate visitation.
D. The Trial Court Erred In Concluding That [the
Division] Had Demonstrated, by Clear and Convincing
Evidence, That The Termination Of Jenny's Parental
Rights Would Not Do More Harm Than Good.
1. [The Division] [i]mpeded Jenny [f]rom
[m]aintaining [a] [b]ond [s]trong [e]nough [t]o
[s]urvive [fourth] [p]rong [a]nalysis.
2. The court erred by denying Jenny a plenary hearing
to explore the legality of the proposed private
placement adoption that [the Division] had
countenanced.
3. The court's reliance on the deterioration in the
quality of the visits after a seven[-]month gap in visits,
due entirely to [the Division] and the removal of the
children to another state, was improper.
POINT II. THE PROCEEDINGS BELOW
DEPRIVED JENNY OF DUE PROCESS (Not Raised
Below).
A. The Court Substantially Prejudiced The Defense By
Not Informing the Parents That [It] Would Rely On
Evidence Of Medical Neglect To Satisfy Prongs One
And Two [of N.J.S.A. 30:4C-15.1(a)].
B. The Substantial Culture And Language Barriers,
Exacerbated By The Covid-19 Pandemic, Infringed On
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Jenny's Due Process Right To Participate In Her Own
Defense.
George raises the following contentions for our consideration:
POINT I. THE TRIAL COURT'S DECISION MUST
BE REVERSED BECAUSE [THE DIVISION]
FAILED TO ESTABLISH BY CLEAR AND
CONVINCING EVIDENCE THAT TERMINATION
OF GEORGE'S PARENTAL RIGHTS WAS IN THE
BEST INTERESTS OF THE CHILDREN.
A. The Trial Court Erred in Finding [the Division]
Demonstrated by Clear and Convincing Evidence that
the Children's Safety, Health, or Development Have
Been or Will Continue to be Endangered by Their
Parental Relationship with Their Father.
B. The Trial Court Erred in Finding that [the Division]
Demonstrated by Clear and Convincing Evidence that
George Was Unwilling or Unable to Eliminate the
Harm Allegedly Facing His Children or Was Unable or
Unwilling to Provide Them a Safe and Stable Home;
[the Division] Did Not Prove Separating the Children
from the Foster Parents Would Cause Them Serious and
Enduring Emotional or Psychological Harm.
C. The Court Erred in Holding [the Division] Proved by
Clear and Convincing Evidence that it Made
Reasonable Efforts to Provide Services to Help George
Correct the Circumstances that Led to His Children's
Placement Outside the Home.
D. The Court's Determination [that] Termination of
George's Parental Rights Will Not Do More Harm Than
Good Was in Error.
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POINT II. GEORGE WAS DENIED DUE PROCESS
BECAUSE THE COURT WRONGLY RELIED UPON
EXCLUDED EVIDENCE; CULTURAL AND
LINGUISTIC BARRIERS, AS WELL AS THE
PANDEMIC, CONTRIBUTED TO SAME.
Defendants' arguments are unavailing.
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)
(citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). 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) (citing N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104
(2008)). "We accord deference to factfindings of the family court because it has
the superior ability to gauge the credibility of the witnesses who testify before
it and because it possesses special expertise in matters related to the family."
N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing
Cesare v. Cesare, 154 N.J. 394, 413 (1998)). No deference is given to the court's
legal interpretations, which we review de novo. 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. F.M., 211 N.J. at 447. That right,
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however, is not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 347
(1999); 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 vulnerable 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 (citing
E.P., 196 N.J. at 102). 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). "[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, 209-10 (App. Div. 2007) (citing N.J. Div. of Youth & Fam.
Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div. 2004)).
The Legislature created a statutory test for a trial court to determine
whether a parent's rights must be terminated in the child's best interests.
Therefore, per N.J.S.A. 30:4C-15.1(a), the Division must 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
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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; [9]
(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.
The four prongs of the best interests test 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)
(citing K.H.O., 161 N.J. at 348), 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.,
9
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. 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).
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189 N.J. 261, 280 (2007) (quoting N.J. Div. of Youth & Fam. Servs. v. F.M.,
375 N.J. Super. 235, 259 (App. Div. 2005)). Parental fitness is the crucial issue.
K.H.O., 161 N.J. 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
Prongs one and two of the best interests test "are related to one another,
and evidence that supports one informs and may support the other as pa rt 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). When considering the first
prong of the best interests test, the court's focus is not "on a single or isolated
harm or past 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. Harm to other children may also be considered when analyzing
the risk of harm to a particular child. N.J. Div. of Youth & Fam. Servs. v. R.M.,
347 N.J. Super. 44, 68 (App. Div. 2002).
Turning to the second prong, "the inquiry centers on whether the parent is
able to remove the danger facing the child." F.M., 211 N.J. at 451 (citing
K.H.O., 161 N.J. at 352). "Prong two may . . . be satisfied if 'the child will suffer
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substantially from a lack of . . . a permanent placement.'" Ibid. (quoting K.H.O.,
161 N.J. at 363); see also C.S., 367 N.J. Super. at 111 ("[T]he . . . statute[]
reflect[s] reforms acknowledging the need for permanency of placements by
placing limits on the time for a birth parent to correct conditions in anticipation
of reuniting with the child."). Thus, continued delay in termination and in
permanent placement can increase the harms identified pursuant to the first
prong. See D.M.H., 161 N.J. at 379. "In other words, the issue becomes whether
the parent can cease causing the child harm before any delay in permanent
placement becomes a harm in and of itself." N.J. Div. of Youth & Fam. Servs.
v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001).
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. See
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
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'potential return of a child to a parent may be so injurious that it wo uld 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)). Even when the parents are not blameworthy
because they were "short-changed by either nature or society," the second prong
is satisfied when their behavior "indicates a further likelihood of harm to the
child in the future." A.W., 103 N.J. at 615-16. "Courts need not wait to act until
a child is actually irreparably impaired by parental inattention or neglect" before
concluding these prongs are satisfied. D.M.H., 161 N.J. at 383 (citing A.W.,
103 N.J. at 616 n.14).
Satisfaction of prong two often requires expert testimony that the parent's
behavior put the child "in substantial jeopardy to physical or mental health," and
there is no "realistic likelihood that the parent[] would ever be capable of caring
for the children." A.W., 103 N.J. at 607, 614. The court may also consider
expert testimony that, despite the parent's good intentions, the parent's cognitive
limitations or mental health issues are sufficiently severe to prevent him or her
from providing minimally adequate parenting in a safe and stable environment.
A.G., 344 N.J. Super. at 440.
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The failure of a parent to provide a "permanent, safe, and stable home"
engenders significant harm to a child. D.M.H., 161 N.J. at 383; see also M.M.,
189 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 (citing K.H.O., 161 N.J. at 352-54). Such withdrawal
constitutes a "failure to provide even minimal parenting . . . ." Ibid.
Guided by these standards, we are satisfied the judge did not abuse her
discretion in finding the Division met its burden in showing by clear and
convincing evidence defendants' ongoing parental incapacity harmed their
children and they were unable to mitigate that harm. N.J.S.A. 30:4C-15.1(a)(1)
and (2).
In addressing prong one, the judge recounted how Gabriel's injuries in
March 2017 prompted the Division's involvement. But, consistent with the
stipulations of counsel during the April and May 2020 case management
conferences, the judge made clear she was not considering who might have
caused or inflicted Gabriel's injuries, nor how the injuries may have been
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exacerbated by defendants' delay in seeking medical care prior to Gabriel's
March 2017 hospitalization. Instead, the judge stressed, "[a]ny information
about whether [Gabriel's injuries were] inflicted or accidental or related to the
child's reaction to . . . a very high fever, sepsis, meningitis . . . is immaterial
because the issue was withdrawn from the court."
The judge then properly focused on what occurred after Gabriel's
hospitalization. She noted defendants reported to the Division that Jenny
"was . . . the only . . . caretaker of the child when this condition developed and
that in terms of anybody who could've cared for the child[,] it was only mom
and dad." Thus, "the investigat[ive] steps that the Division took were limited in
the scope to that situation." The judge observed that "about [eighteen months]
after the initial injury," "the parents revealed . . . they knew their child had
sustained traumatic injury because of some type of [f]all at his babysitter's. And
they gave that babysitter's name and indicated when they found out" what
happened to the child. The judge concluded these
subsequent developments in terms of the new
information provided by the parents after [Alex] was
born, [are] relevant to . . . [defendants'] flawed
decision-making. And that flawed decision-making is
relevant to the entire prong one and prong two proofs
of the Division in terms of what the parents . . .
learned . . . and [their] judgments in the future
regarding the care of both of their children.
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Highlighting defendants' ongoing parental incapacity, the judge found
defendants
demonstrated throughout this litigation, mom more
than dad, that they didn't really understand how a fever
caused [Gabriel's] injuries. They didn't understand the
shunt in [his] brain. They didn't understand, despite
explanation, including in Popti, . . . much about what a
brain bleed is. . . . But they . . . really didn't get how a
blunt force trauma impacts on a child's care, what the
various medical interventions were, and then what
follow-up was needed so the child would heal perfectly
and . . . the parents [were] not forthright about the facts
that would've helped them learn more about how the
child was hurt in the way that he was.
To illustrate her point, the judge continued by referencing Gabriel's need
for surgery in May 2017, some two months after his initial hospitalization. She
stated:
So[,] for example, with respect to the shunt, . . . the
child was hospitalized and with [a] fever which may or
may not be related to the brain swelling or bleeding, or
inflammation of some type that required the shunt to
relieve pressure[.] [T]he parents didn't demonstrate any
understanding of why there was a little helmet on this
child, which was to prevent him from falling so he
wouldn't be reinjured . . . or the shunt wouldn't be
affected.
....
But dad definitely removed the child's helmet
without authorization July 3, 2018, July 10, 2018, [and]
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June 26, 2018 during visits . . . [and] there's references
to his removal of the helmet at a recent visit and [he
was] told . . . more about why he shouldn't do it. . . .
So, the court notes it's more than . . . three times.[10]
. . . [T]he helmet should've been in place from May 21,
2017 to May 21 of 2019. . . . When the parents were
asked about the helmet, they said, "well, it just makes
his head feel better."
The judge also concluded that despite defendants having met with a
Division nurse and caseworker, with the assistance of a Popti interpreter, to
review Gabriel's medical and developmental care, defendants exhibited nothing
more than "the most simplistic understanding of the severe injury [Gabriel]
sustained [and] the coordinated and highly professional care he required as a
result."
Additionally, the judge found once Gabriel's condition became "somewhat
stabilized . . . after the shock, hospitalizations, and the spiking fevers resolved,"
defendants "opted not to go" to Gabriel's Early Intervention evaluation, even
though the service was "not dependent on income," and "it could've been such a
rich source of information for the defendants. . . . That would've been a . . . start
10
In her amplified opinion, the judge stated that according to the Division's case
notes, there were "numerous dates when the helmet was removed by the parents
despite frequent admonitions not to. Those dates included 10/10/17, 11/27/17,
3/6/18, 4/17/18, 6/26/18, 7/3/18, 7/10/18 and 7/18/18."
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to understanding the nature of this child's injuries and healing process." In her
amplified opinion, the judge added that defendants "did not then and still do not
express an understanding of how important that evaluation was to secure
necessary therapies to avoid developmental delays related to [Gabriel's ]
injuries." She found, too, that defendants, "up to and during the trial[,]
continue[d] not to evidence even a basic understanding of the work [Gabriel]
and the therapists were doing through the [E]arly Intervention programming,
notwithstanding discussions the Division and Agosto had with them."
Further, the judge concluded that during the two years it took to resolve
Gabriel's injuries, defendants "really weren't able to take care of him with his
unique needs" and they "didn't make progress" despite receiving various
recommendations from their caseworker and Dr. Pérez-Rivera.
In her amplified opinion, the judge questioned "[w]hether the parties
would make future judgments about their children's well-being and protection
as flawed as the ones which resulted in neither of them telling service providers,
the court[,] or medical care providers for over eighteen months what they later
said they knew of the circumstances of [Gabriel's] injuries." She found "[t]he
decision to remain silent was joint [and] . . . demonstrated no understanding of
the importance [for] care providers to have as clear as possible an understanding
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of the mechanics of the child's injury." The judge expressed concern that "[a]
similar omission, caused by [naiveté], distrust or defensiveness, regarding any
future harm the children might sustain while in [defendants'] care, could put that
child at risk of great harm." Critically, although defendants claimed they
refrained from reporting Gabriel's babysitter to the Division because they relied
on her telling them they would have Gabriel back in three months and "not to
worry," the judge found defendants "knew that this was an impediment to
[Gabriel's] reunification with them."
The judge emphasized she was not looking at the facts of the case "as the
Division trying to backdoor some type of proof that the parents must have [hurt
Gabriel] or . . . lie[d] about the babysitter." She reasoned:
It is not necessary. It is not proper for me to do that. I
am not doing that.
I want to make that crystal clear. But it doesn't
leave the issue irrelevant. [Gabriel] is not a child in a
vacuum where his most central needs [for] the two
years after his hospitalization can be ignored simply
because the court is not looking at the question or
relying on any inferences whatsoever, that the parents
recklessly hurt this child or recklessly without regard
for his well-being didn't disclose [what] happened to
him.
In steering clear of a Title Nine analysis and noting she had not reviewed
the factfinding decision in the preceding Title Nine matter, the judge highlighted
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this was "[n]ot a blameworthy situation" and she was "not inferring [defendants]
caused the injury or recklessly delayed treatment," for Gabriel; instead, her
focus remained on defendants' parental incapacity in that "they didn't understand
that this child needed to be seen."
The judge concluded defendants made "some progress" in parenting while
the Title Thirty litigation was pending, but she determined they had not
progressed sufficiently "to be able to provide [Alex], let alone [Gabriel ,] with a
safe and stable home." The judge specifically found Jenny "denied that
[Gabriel] had any special needs" and she "had no real working knowledge . . .
of what was done on his behalf."
Further, the judge credited and gave "meaningful weight" to Dr. Lee's
testimony that defendants had a limited understanding of their children's
developmental milestones. She also found defendants "never made any progress
with understanding what" their children needed by way of discipline. By way
of example, she determined that as Gabriel became older and was "running
around, the parents really [did] not know[] what to do." She noted defendants
did not correct Gabriel's behavior when he was "hitting a parent or climbing
up . . . furniture in the visitation area . . . or balking on the ground in a lack of
cooperation."
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Although the judge found "visitation sessions were adequate with respect
to parent-child affectionate interaction," she concluded the
sessions did not evidence significant improvement
regarding safety monitoring[,] development[,]
knowledge[,] or structure during the life of the
children's case and safety reminders were made by the
[Division] staff with some frequency even in the
controlled setting of the visitation room. The
deterioration in the quality of the children's visits [was]
not clearly observable until the children's placement
was moved to their current pre-adopt home in
Alabama[,] which occurred in late August of 2019.
That move overlapped [Gabriel's] increasing ability to
speak, and the language he had learned was English.
Additionally, the judge found "[t]he tongue incident" initiated by George
during a supervised visit with Alex was "significant[]" because George failed to
recognize this behavior would be "violating a boundary with the child that . . .
could interfere with the child's comfort level and relationship." Likewise, she
noted George was corrected during a supervised visit when he and Jenny played
with Gabriel's penis during a diaper change for "about [forty-five] seconds."
The judge stated, "I don't want to overemphasize those two incidents, but they
do reflect [defendants'] understanding of parenting."
Turning to Jenny's "failure to inform professionals providing her
parenting training that she was not a 'first-time' mother," the judge found Jenny
"insisted . . . she had no prior experience raising children during the first six
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months of the [Division's] case" and "only reluctantly confirmed the existence
of these children after confronted with her medical history as she provided it in
medical records in the [D]ivision's possession." The judge credited Agosto's
testimony that her parenting education approach with Jenny was based on
Jenny's misrepresentation she was a "first-time mother" and if Agosto "had
known that mother had older children[,] she could have incorporated mother' s
specific prior experiences with raising those children in her parenting education
dialogue and examples." Moreover, the judge credited Dr. Lee's opinion that
Jenny's prior experience with her own children, who were ten and fourteen years
old when Jenny immigrated to the United States, "should have provided her with
more knowledge."
Further emphasizing defendants' demonstrated inability to parent Gabriel
and Alex, the judge found George was "told . . . numerous times throughout this
litigation . . . that mom was really a lot less ready than [he] would be to parent
and interact with . . . [the boys]." By way of example, the judge stated "it was
clear that the defendant father was more capable of identifying hazards[,] such
as some choking hazards[,] and of communicating with the children non-
verbally, despite language barriers. Mother demonstrated difficulty in having
[Gabriel] follow routine parental direction during visits, as compared to father."
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Thus, the judge was struck by the fact that after defendants were told there were
concerns about Jenny's deficits, they "never deserted the plan" that if
reunification occurred, "mother would remain in the home with the children and
father would work outside of the home[,] as was the case before the Division's
involvement."
The judge's findings on prongs one and two are not only amply supported
in the record, but also are bolstered by the unrefuted testimony of Dr. Lee, the
lone expert in the case. As we have discussed, Dr. Lee never wavered in his
opinion defendants were not minimally adequate parents and would be unable
to overcome their significant parenting deficits in the foreseeable future .
To the extent defendants argue the judge improperly considered the cause
of Gabriel's injuries and defendants' delay in securing medical treatment for his
injuries when she analyzed prongs one and two, despite agreements reached
between counsel mid-trial, such contentions are belied by the record.
As is evident from her oral decision and amplified judgment, the judge
did not arrive at her termination decision by relying on who or what caused
Gabriel's injuries in March 2017, nor did she rely on any delay in treatment
Gabriel experienced in March 2017. Instead, she focused on defendants'
subsequent lack of understanding of the child's injuries, their ongoing inability
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to do what was necessary to help Gabriel heal as he recovered from his injuries,
and how their parental incapacity also would impact Alex, though the younger
child did not suffer from a medical condition.
As the judge succinctly noted in the sections of her amplified decision
addressing prongs one and two, there were various "examples of the risk of harm
presented by [defendants] not understanding the extent of [Gabriel's]
injuries . . . despite numerous discussions with [a Division] caseworker and
[Agosto]." She illustrated her point by noting defendants "were never able to
describe . . . the purpose of the helmet was to protect the child's head from re-
injury in a fall or from running into furniture." Thus, in assessing defendants'
inability to ameliorate harm to their children, the judge found "the extent of
[Gabriel's] injuries and the details of his after[-]injury care . . . were not
understood by the parents at the time of the injury and . . . are still not
understood."
We are persuaded the judge's nuanced analysis is consistent with the
stipulations reached by counsel and sanctioned by the judge during case
management conferences held in April and May 2020. As the judge correctly
noted in her amplified statement of reasons, counsel agreed mid-trial that
allegations in the FG complaint that [defendants]
inflicted the injuries which resulted in [Gabriel's 2017]
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hospital admission . . . either purposely, knowingly[,]
or with reckless disregard of the risk of such injury
would be withdrawn from the Division's termination of
parental rights . . . complaint and proofs. . . .
Additionally, the allegation that the parent[s'] delay in
seeking treatment for [Gabriel] rose to the level of Title
Nine abuse or neglect by purposely, knowingly[,] or in
disregard of risk of serious harm failing to act, was also
withdrawn. Related evidential redactions were
prepared and . . . . [t]he agreement was confirmed, on
the record, . . . on April 30, 2020. 11 During this
conference the court and counsel dialogued so as to
clarify whether the stipulation was intended to allow
evidence of the delay in obtaining treatment to be part
of the Division[']s remaining [p]rong [one] proofs.
More specifically, a [p]rong [one] theory that the child's
safety, health[,] and development had been or would
continue to be endangered by the parental relationship
because the parents did not quickly seek medical care
and lacked the capacity to know how to safely and
adequately parent could be presented. The parties
acknowledged that the stipulations and related
redactions would allow that evidence of the delay and
related issues of the parent[s'] understanding of the
severity of the child's symptoms could remain as part
of the [Division's] case. Evidence previously
introduced regarding the circumstances immediately
before and reasons for the child's hospitalization would
11
We recognize the record indicates any agreement reached on April 30 was
tentative. This fact does not alter our analysis because once defense counsel
stipulated during the May 2020 case management conference that it was
unnecessary to have Dr. Scheller testify, the parameters for how Gabriel's
injuries could be considered by the court were finalized. Also, it is evident any
remaining redactions approved by the judge during the May 2020 proceeding
were based on the stipulations reached between counsel during the April and
May 2020 case management conferences.
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remain in the record but only as relevant to the issue of
parenting capacity and decision making.
The subsequent withdrawals of evidence and
witnesses[,] as well as redactions to the Division's case
notes . . . and other documentation were consistent with
counsel's agreement.
The language of the [o]rder confirming the
stipulations did not include all of the detail outlined
above.
[(Emphasis added).]
Prong Three
N.J.S.A. 30:4C-15.1(a)(3) requires the Division make "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 to "consider[] alternatives
to termination of parental rights[.]" Although the judge here found "the
Division . . . prove[d] the two parts of the third prong by clear and convincing
evidence," defendants contend the Division failed to provide adequate services
for the purpose of reunification. Again, we disagree.
"Experience tells us that even [the Division's] best efforts may not be
sufficient to salvage a parental relationship." F.M., 211 N.J. at 452. Moreover,
"if the Division ha[s] been deficient in the services offered to" a parent, reversal
is not necessarily "warranted, because the best interests of the child controls[]"
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the ultimate determination. N.J. Div. of Youth & Fam. Servs. v. F.H., 389 N.J.
Super. 576, 621 (App. Div. 2007).
Here, the judge found the Division established the third prong of the best
interests test, in part, because "[t]he Division provided numerous family team
meetings and always had the counselor there. . . . [T]his provider really got to
know and care about this family. . . . [T]hat came through in Ms. Agosto's
testimony. Ms. Soler did as well." Further, the judge found Dr. Pérez-Rivera's
evaluations and recommendations provided defendants with necessary
information to assist them in parenting.
The judge specifically noted, Agosto provided "weekly bi-lingual
parenting counseling . . . from the inception of the case until January of 2020,"
albeit with "breaks in service," and "[h]er sessions were conducted with the
assistance of a Popti interpreter through [a] language line." The judge also found
Agosto
spoke frankly and plainly to the parents about
parenting, using a simplified curriculum which they
seemed to understand. However, information they
learned did not appear to be retained over time, such as
the importance and reasons for the child's . . .
helmet . . . or the range of developmental stages for
children. She shared Dr. Pérez-Rivera's
recommendations and repeatedly encouraged
[defendants] to take advantage of free English as a
second language and literacy courses . . . . The court
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observed that Ms. Agosto's attendance at [Division]
Family Team Meetings . . . allowed for hands-on
collaboration . . . with the assistance of a Popti
interpreter [which] was a sound plan to assure that the
parents had input into their counseling and services
plans, understood what they were expected to do and
had a mechanism to have their questions and concerns
addressed. . . . [Agosto's] recommendations regarding
the parents obtaining more practical literacy skills
w[ere] specific in terms of the location of classes . . .
and how to utilize the internet to obtain a range of . . .
parenting videos[,] including Popti-Spanish
interpreting and basic parenting issues and ideas. . . .
[V]isitation sessions frequently document dad being
able to use his phone to play games and watch movies
with [Gabriel] during visits. . . . [A]nd mother
expressed that she had in fact used the internet to access
videos about how to parent and found them helpful.
The judge also noted
[t]hroughout 2020 . . . the . . . caseworker repeatedly
asked . . . [d]efendants whether she could refer them to
parenting classes and they continually and politely
declined. They explained that they did not feel they
needed more information to parent. They also stated
that they had to work and could not participate in
services as a result.
Regarding the boys' placements, both in New Jersey and then Alabama,
the judge concluded the Division engaged in "concurrent planning," whereby
[t]he goal was reunification for the parents. But . . .
early in the litigation, it was known that ultimately, . . .
should the Division seek and the court grant a . . .
termination of parental rights[,] . . . at the request of the
then current resource home, who was willing to adopt,
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and apparently still are, . . . that a judge . . . might very
well be asked to approve moving the children out of
state to Alabama, which of course, . . . ultimately
happened.
The judge determined it was reasonable for the Division to initially place
Gabriel with his New Jersey resource parents, despite that this was "[n]ot a
Spanish speaking home." She found Art and Sue "had a lot of experience with
caring for a child who had serious issues that required medical monitoring,
appointments, follow[-]up, careful observations, [and] careful implementation
of various recommendations from healthcare providers to assure that he healed
well. . . . That's why they were chosen."
Although the judge expressed "it would've been helpful for there to be
more candor" about what Art, Sue, Mary, and Ted had planned for Gabriel and
Alex, she declined to find any resource parent had "unclean hands." Further,
she found the Division documented the resource parents' plans "over and over
again." The judge also found no fault with her predecessor's decision to allow
the boys' move to Alabama, noting when that decision was made, it was
anticipated a trial would be conducted "soon" and "nobody could've predicted
this pandemic."
To the extent certain other services or activities were not offered to
defendants, the judge found defendants
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did not progress to be able to safely manage the needs
of their children who were at two different
developmental stages, either out[]doors or in a public
place such as a park or public library. Mobility out of
doors was impacted because simultaneous interpreters
were needed in Spanish and Popti . . . . Additionally,
the parents struggled with ideas for visitation activities
even in the more sheltered setting of the [Division]
office.
The judge rejected defendants' argument the Division should have
explored other options for "an in-home or community-based parenting service,"
concluding "[n]o further specific viable service, able to utilize the necessary
simultaneous Popti-Spanish and English double interpreting was identified
during this litigation" and "identifying such a unique service was not caused by
lack of reasonable effort by the [Division]." Moreover, the judge determined
the Division's services "were coordinated" and "had a reasonable potential to
succeed." While she acknowledged the Division's efforts "did not succeed," she
found that did "not mean that the efforts weren't reasonable." Our review of the
record convinces us the judge's findings on prong three are well-supported by
competent credible evidence.
As to the remaining requirement under prong three, for the sake of
completeness, we note defendants do not contest the Division considered the
two placement options they offered. Also, defendants do not identify a viable
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placement alternative overlooked by the Division after Jenny's brother and sister
were "ruled out." Thus, we cannot conclude the judge abused her discretion in
finding the Division established both elements of the third prong by clear and
convincing evidence.
Prong Four
The fourth prong of the statute requires the court to determine that
termination "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). It
serves as a "'fail-safe' inquiry guarding against an inappropriate or premature
termination of parental rights." F.M., 211 N.J. at 453 (quoting G.L., 191 N.J. at
609). "The question ultimately is not whether a biological mother or father is a
worthy parent, but whether a child's interest will best be served by completely
terminating the child's relationship with th[e] parent." E.P., 196 N.J. at 108.
Typically, as to this prong, "the [Division] . . . offer[s] testimony of a well[-
]qualified expert who has had [a] full opportunity to make a comprehensive,
objective, and informed evaluation of the child's relationship with both the
natural parents and the foster parents." F.M., 211 N.J. at 453 (quoting M.M.,
189 N.J. at 281).
A child "deeply needs association with a nurturing adult[,]" and a sense
of "permanence in itself is an important part of that nurture[.]" A.W., 103 N.J.
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at 610. "When a parent has exposed a child to continuing harm through abuse
or neglect and has been unable to remediate the danger to the child, and when
the child has bonded with foster parents who have provided a nurturing and safe
home," the termination of parental rights "likely will not do more harm than
good." E.P., 196 N.J. at 108. The child's need for permanency and stability
emerges as a central factor. K.H.O., 161 N.J. at 357.
The ultimate determination on the fourth prong cannot be made simply by
showing "the child has bonded with foster parents who have provided a
nurturing and safe home," or that terminating parental rights "likely will not do
more harm than good" because it would provide the child with the benefit of a
"permanent placement with a loving family." E.P., 196 N.J. at 108. Nor can it
be made simply upon finding that the bond with the foster parent is stronger than
the bond with the biological parent, because that is an expected result of an early
or lengthy removal. G.L., 191 N.J. at 608-09. Termination is only appropriate
when the absence of permanency would cause harm, and when the parent is
unlikely in the reasonably foreseeable future to become capable of primary
caregiving for the child without risking harm. L.J.D., 428 N.J. Super. at 483-
87. That is the case here.
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As the judge noted, she was able to "look at the length of the placement,
[and] its impact on the child[ren's] ability to be secure, and develop in a known
foreseeable home." She also accepted Dr. Lee's testimony that Gabriel and Alex
were "on a path to bond with" Mary and Ted, and found the Division proved
Mary and Ted were "able, and willing, and committed to mitigating any harm to
the children from having their relationship with their parents severed." But
significantly, she also found "compelling" Dr. Lee's testimony that he did not
envision defendants being able to adequately provide for their children now or
in the foreseeable future.
Acknowledging defendants experienced an "unusual visitation
arrangement" and endured breaks in visits over the life of the case, particularly
during the pandemic, the judge stressed these "breaks are not such that they
independently created this situation which cause[d] the parents not to be able to
– at this moment – provide a safe and adequate home for the children." She also
emphasized defendants' visitation sessions "did not evidence significant
improvement regarding safety monitoring[,] development[,] knowledge[,] or
structure during the life of the children's case and safety reminders were made
by [Division] staff with some frequency even in the controlled setting of the
visitation room." (Emphasis added).
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Because the record makes clear: Gabriel and Alex were in placement from
the time they were infants; Gabriel and Alex were in the process of bonding with
their Alabama resource parents when Dr. Lee evaluated them and predicted they
would bond with Mary and Ted within several months; the boys continued to
thrive in the care of Mary and Ted long after Dr. Lee conducted his bonding
evaluations; Mary and Ted wished to adopt both boys; and Dr. Lee concluded
defendants remained incapable of parenting the boys now and in the foreseeable
future, we are satisfied the judge properly concluded termination would not do
more harm than good.
Due Process
Turning to defendants' due process arguments, we note due process
generally "requires adequate notice and a fair opportunity to be heard." N.J.
Div. of Child Prot. & Permanency v. K.S., 445 N.J. Super. 384, 390 (App. Div.
2016) (quoting N.J. Div. of Youth & Fam. Servs. v. M.Y.J.P., 360 N.J. Super.
426, 464 (App. Div. 2003)). In cases involving the termination of parental rights
specifically, "[w]hen the State moves to destroy weakened familial bonds, it
must provide the parents with fundamentally fair procedures." Ibid. (quoting
Santosky v. Kramer, 455 U.S. 745, 753-54 (1982)). Although "it is well
established as a matter of due process principle that procedural requirements are
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more demanding in parental termination cases than in ordinary civil actions,"
due process "is a flexible concept and calls for such procedural protections as
the particular situation demands." M.Y.J.P., 360 N.J. Super. at 464, 467.
Guided by these standards, we are convinced defendants due
process claims are without merit. R. 2:11-3(e)(1)(E). Indeed, the record
establishes they received adequate procedural protections, including fair notice
and an opportunity to be heard. Moreover, it is evident from the record that each
judge tasked with presiding over this complex guardianship matter consistently
accommodated defendants' cultural and language barriers, ensured interpreter
issues were resolved for defendants' benefit, and addressed complications
arising from the pandemic in a timely manner while also ensuring services
continued to be coordinated through the Division.
In sum, we perceive no basis to disturb the judge's factual findings nor her
legal determinations under N.J.S.A. 30:4C-15.1(a). To the extent we have not
specifically addressed any of defendants' remaining arguments, we are
satisfied they are without sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
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