DCPP v. E.B., IN THE MATTER OF THE GUARDIANSHIP OF D.H., JR. (FG-07-0107-19, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 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NOT FOR PUBLICATION WITHOUT THE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 NO. A-3581-20
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
E.B. (deceased),
Defendant,
and
D.H., SR.,
Defendant-Appellant.
__________________________
IN THE MATTER OF THE
GUARDIANSHIP OF D.H., Jr.,
a minor.
___________________________
Submitted October 6, 2022 – Decided October 13, 2022
Before Judges Haas and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0107-19.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stephania Saienni-Albert, Designated
Counsel, on the briefs).
Matthew J. Platkin, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Mary L. Harpster, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Todd Wilson, Designated
Counsel, on the brief).
PER CURIAM
Defendant D.H., Sr.1 is the biological father of D.H., Jr. Defendant
appeals from the July 6, 2021 judgment of guardianship terminating his parental
rights to the child. Defendant contends the Division of Child Protection and
Permanency (Division) failed to prove each prong of N.J.S.A. 30:4C-15.1(a) by
clear and convincing evidence. Defendant also challenges several evidentiary
rulings and further alleges that he received ineffective legal assistance from his
1
We refer to defendant and the children by initials to protect their privacy. R.
1:38-3(d)(12).
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trial counsel. The Law Guardian supports the termination on appeal as it did
before the trial court.
Based on our review of the record and applicable law, we are satisfied that
the evidence in favor of the guardianship petition overwhelmingly supports the
decision to terminate defendant's parental rights. Accordingly, we affirm
substantially for the reasons set forth by Judge Nora J. Grimbergen in her
thorough written decision rendered on July 6, 2021.
We will not recite in detail the history of the Division's interactions with
defendant and D.H., Jr. Instead, we incorporate by reference the factual findings
and legal conclusions contained in Judge Grimbergen's decision. We add the
following brief comments.
In February 2018, the Division received a referral from a hospital
emergency room concerning D.H., Jr. The nine-year-old child had difficulty
walking and presented with bruises on his face, a swollen and red hand, an
infected finger, and numerous marks and bruises on the front and back of his
body. The hospital took x-rays and CT scans that revealed D.H., Jr. had
approximately twenty-two rib fractures, a healing fracture of his left scapula,
probable pulmonary contusions, a small volume of fluid within his pelvis, and
other injuries.
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Defendant, who was the child's sole caretaker, denied any knowledge of
how his son sustained these serious injuries, and the child initially refused to
provide any information. Eventually, D.H., Jr. revealed that defendant caused
the injuries by hitting him on a regular basis. The trial court granted the Division
custody of the child and barred defendant from having any contact with him.
The guardianship petition was tried before Judge Grimbergen over
multiple days. The Division presented overwhelming evidence of defendant's
parental unfitness and established, by clear and convincing evidence, all four
statutory prongs outlined in N.J.S.A. 30:4C-15.1(a). In her thoughtful opinion,
Judge Grimbergen concluded that termination of defendant's parental rights was
in D.H., Jr.'s best interests, and fully explained the basis for each of her
determinations.
In this appeal, our review of the judge's decision is limited. We defer to
her expertise as a Family Court judge, Cesare v. Cesare, 154 N.J. 394, 413
(1998), and we are bound by her factual findings so long as they are supported
by sufficient credible evidence. N.J. Div. of Youth & Fam. Servs. v. M.M., 189
N.J. 261, 279 (2007). Applying these principles, we conclude that Judge
Grimbergen's factual findings are fully supported by the record and, in light of
those facts, her legal conclusions are unassailable.
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In so ruling, we reject defendant's contentions that: (1) the Division's and
the Law Guardian's experts based their decisions upon "inadmissible hearsay";
(2) the judge incorrectly barred defendant "from obtaining his own expert to
evaluate" D.H., Jr.; (3) defendant's trial attorney provided him with ineffective
assistance; and (4) the cumulative effect of these errors "caus[ed] an unjust
result." We address these contentions in turn.
In Point I of his brief, defendant argues that the trial judge should not have
considered the expert opinions expressed by the Division's psychologist, Dr.
Barry Katz, and the Law Guardian's psychologist, Dr. Gregory Gambone,
because both experts reviewed "voluminous hearsay documents . . . that were
not admitted at trial" in the preparation of their reports. These documents
included defendant's employment records and suspension notifications, prior
domestic complaints involving defendant, and psychological evaluations
conducted of defendant by other practitioners. Defendant asserts "there is
simply no way to tell whether much of the information [the experts] relied on
was inaccurate, because it was never entered into evidence."
Defendant's argument lacks merit. N.J.R.E. 703 plainly states:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or before
the proceeding. If of a type reasonably relied upon by
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experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not
be admissible in evidence.
The records Dr. Katz and Dr. Gambone examined while preparing their
respective reports were obviously the type of records routinely relied upon by
psychologists in evaluating a parent's fitness. Moreover, each expert discussed
defendant's past record of domestic violence, work suspensions, prior
evaluations, and therapy with defendant during the forensic interviews. Thus,
defendant had ample opportunities to question the accuracy of these documents
during the evaluation process. Under these circumstances, Judge Grimbergen
properly considered the opinions expressed by Dr. Katz and Dr. Gambone.
In Points II and III, defendant contends that the trial judge incorrectly
barred him from retaining a psychologist to perform an evaluation of D.H., Jr.
However, this argument is not supported by the record.
At case management conferences on April 3, 2019 and May 8, 2019,
defendant's attorney broached the possibility that she would seek to have a
psychologist examine D.H., Jr. The Law Guardian objected and requested to
speak with the child's therapist prior to requiring D.H., Jr. to relive the trauma
suffered at defendant's hands. The judge stated she would wait to hear from the
therapist.
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At the June 5, 2019 case management conference, defendant's attorney
again raised this issue. The Law Guardian reported that D.H., Jr.'s therapist
believed "asking [the child] to relive the trauma . . . may cause him to be less
responsive to treatment and may stunt the healing process."
Judge Grimbergen expressed concern that the evaluation might "have a
detrimental effect on" D.H., Jr., and asked defendant's attorney to have the
proposed expert "advise the court what . . . he or she would hope to gain from
such a . . . meeting and provide me with an outline of what that expert was going
to . . . do in this meeting . . . ." The judge stated she was "not inclined to . . .
completely foreclose it," but wanted to obtain this information in order "to
determine . . . what exactly . . . this expert would hope to gain, what the areas of
questioning would be, and . . . how we would go about that." Defendant's
attorney stated she "agree[d]" with this approach. However, the defense never
provided the requested information and did not again seek to retain an expert to
evaluate D.H., Jr.
Based upon the foregoing, it is clear that Judge Grimbergen did not bar
defendant from producing an expert to evaluate D.H., Jr. The judge merely
asked the defense to provide an outline of the purpose of the evaluation and the
manner in which it would be conducted in order to avoid harming the child. This
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request was plainly reasonable in light of the extreme trauma the child was
working through therapy to overcome. Therefore, we reject defendant's
contention on this point.
Defendant argues in Point IV that his attorney provided him with
ineffective assistance because the attorney did not object to the hearsay
information the Division's and the Law Guardian's experts relied upon in their
reports and by failing to file a motion to prevent the Division from presenting
testimony concerning its psychological evaluation of D.H., Jr. because
defendant did not present his own expert. This contention lacks merit.
To establish an ineffective assistance of counsel claim in matters
involving the termination of parental rights, a defendant must meet the two-
prong test established in Strickland v. Washington, 466 U.S. 668, 687 (1984),
which requires a showing that trial counsel's performance was deficient and that,
but for the deficient performance, the result would have been different. N.J.
Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307-09 (2007) (citing
Strickland, 466 U.S. at 687, 694). The defendant bears the burden of
demonstrating a constitutional violation, as the court will presume that counsel
acted competently. United States v. Chronic, 466 U.S. 648, 658 (1984).
Defendant has failed to meet that burden here.
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As discussed above, the Division's and Law Guardian's experts properly
considered the hearsay information contained in defendant's records. Therefore,
there was no basis for defendant's trial attorney to attempt to exclude these
reports on this ground.
Similarly, Judge Grimbergen did not bar defendant from arranging for his
own expert psychological evaluation of D.H., Jr., provided he submit the
reasonable information necessary to enable the court to determine whether such
an evaluation would harm the child. In B.R., the Supreme Court held that if a
defendant claims trial counsel was ineffective for failing to produce expert or
lay witnesses, the "appellant will be required to supply certifications from such
witnesses regarding the substance of the omitted evidence along with arguments
regarding its relevance." B.R., 192 N.J. at 311. On appeal, defendant has failed
to file any certifications demonstrating that a further evaluation of D.H., Jr. was
necessary, or that an evaluation could have been conducted without causing
additional harm to him. Under these circumstances, we discern no basis for
second-guessing the trial attorney's tactical decision not to pursue a
psychological evaluation of the child.
Finally, defendant argues in Point V of his brief that the cumulative
prejudice of the errors he raises deprived him of a fair trial. Having rejected
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defendant's argument that any reversible error occurred during his trial, we also
reject his cumulative error argument.
In sum, children are entitled to a permanent, safe and secure home. We
acknowledge "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." N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 76, 111 (App.
Div. 2004). As public policy increasingly focuses on a child's need for
permanency, the emphasis has "shifted from protracted efforts for reunification
with a birth parent to an expeditious, permanent placement to promote the child's
well-being." Ibid. That is because "[a] child cannot be held prisoner of the
rights of others, even those of his or her parents. Children have their own rights,
including the right to a permanent, safe and stable placement." Ibid.The question then is "whether the parent can become fit in time to meet
the needs of the children." N.J. Div. of Youth & Fam. Servs. v. F.M., 375 N.J.
Super. 235, 263 (App. Div. 2005). After carefully considering the evidence,
Judge Grimbergen reasonably determined that defendant was unable to parent
D.H., Jr. Under those circumstances, we agree with the judge that any further
delay of permanent placement would not be in the child's best interests.
Affirmed.
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