DCPP v. D.C.A. AND J.J.C.B., IN THE MATTER OF THE GUARDIANSHIP OF I.A.C.C., J.S.C.C., A.I.C.C. AND I.C.C. (FG-06-0025-20, CUMBERLAND COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0735-21
NEW JERSEY DIVISION
OF CHILD PROTECTION APPROVED FOR PUBLICATION
AND PERMANENCY,
October 27, 2022
Plaintiff-Respondent, APPELLATE DIVISION
v.
D.C.A.,
Defendant-Appellant,
and
J.J.C.B.,
Defendant.
________________________
IN THE MATTER OF THE
GUARDIANSHIP OF
I.A.C.C., J.S.C.C., A.I.C.C.
and I.C.C., minors.
________________________
Submitted October 3, 2022 – Decided October 27, 2022
Before Judges Whipple, Smith and Marczyk.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Cumberland County,
Docket No. FG-06-0025-20.
Joseph E. Krakora, Public Defender, attorney for
appellant (John A. Albright, Assistant Deputy Public
Defender, of counsel and 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 minors (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; Neha Gogate, Assistant
Deputy Public Defender, of counsel and on the brief).
The opinion of the court was delivered by
WHIPPLE, J.A.D.
Defendant D.C.A. (Divina) 1 appeals from the October 20, 2021 judgment
of guardianship after trial, terminating her parental rights to four of her
children. We affirm.
Plaintiff raises the following issues on appeal:
I. THE GUARDIANSHIP JUDGMENT SHOULD BE
REVERSED AS IT RESTS ON A MOUNTAIN OF
INADMISSIBLE EVIDENCE INCLUDING THE
PURPORTED ADMISSIONS OF THE MOTHER
CONTAINED WITHIN THE REPORTS OF NON-
TESTIFYING EXPERTS, AND THEIR OPINIONS
AND DIAGNOSES ERRONEOUSLY ADOPTED BY
THE COURT UNDER THE UMBRELLA OF DR.
[ALAN] LEE'S OPINION.
1
We use pseudonyms to protect the identity of the family pursuant to Rule
1:38-3(d)(12) and for ease of reference. In doing so, we mean no disrespect.
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a. The reports of non-testifying experts
were only offered by [the New Jersey
Division of Child Protection and
Permanency (the Division)] to "show[ ]
that the Division offered the service, that
the service was complied with"; instead,
the [trial] court accepted the truth of the
hearsay contained within.
b. The [trial] court's extraction of the
mother's "admissions" from the non-
testifying experts' reports to establish
"domestic violence" between the parties
was error and resulted in an egregious due
process violation.
c. Even if statements made by the mother
to the non-testifying experts were
"statements against interest" or
"statements of a party-opponent," the non-
testifying experts' written versions of the
"admissions" were hearsay not subject to
any exception.
d. Although claiming it did not do so, the
[trial] court erroneously adopted the
opinions and diagnoses of all of the non-
testifying experts because Dr. Lee did.
II. THE GUARDIANSHIP JUDGMENT SHOULD
BE REVERSED BECAUSE THE [TRIAL] COURT
IMPROPERLY RELIED ON EVIDENCE THAT
SEPARATING THE CHILDREN FROM THE
FOSTER PARENTS WOULD CAUSE SERIOUS
AND ENDURING EMOTIONAL OR
PSYCHOLOGICAL HARM TO THEM TO
TERMINATE THE MOTHER'S PARENTAL
RIGHTS IN VIOLATION [OF] THE JULY 2, 2021
STATUTORY AMENDMENTS AND THE
EXPLICIT FINDINGS OF THE LEGISLATURE.
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III. THE GUARDIANSHIP JUDGMENT AGAINST
THE MOTHER IN THIS CASE SHOULD BE
REVERSED BECAUSE DIVINA NEVER HARMED
ANY OF THE CHILDREN OR PLACED THEM AT
RISK, VIA "DOMESTIC VIOLENCE" OR
OTHERWISE.
IV. THE GUARDIANSHIP JUDGMENT AGAINST
THE MOTHER SHOULD BE REVERSED
BECAUSE NEITHER THE "TOXIC
RELATIONSHIP" RELIED ON BY THE COURT TO
SUPPORT PRONG ONE, NOR DR. LEE'S NET
OPINION THAT DIVINA LACKED FITNESS TO
PARENT, SATISFY PRONG TWO OF THE BEST
INTERESTS TEST.
a. Lee delivered nothing more than a "net
opinion" that Divina lacked parental
fitness, and his methodology in
conducting a psychological evaluation
lacked any semblance of reliability when
he failed to use any actual testing.
b. The [trial] court's reliance on Dr. Lee's
opinions to find that Divina suffers from
schizophrenia to find that she was unfit,
must be reversed, as Dr. Lee's opinion was
"provisional" meaning that the diagnosis
was utterly speculative.
V. THE [TRIAL] COURT'S PRONG THREE
CONCLUSION SHOULD BE REVERSED
BECAUSE [THE DIVISION]'S EFFORTS IN
BLOCKING VISITATION RECOMMENDED BY
ITS OWN PROVIDER WERE PATENTLY
UNREASONABLE AND THWARTED
REUNIFICATION.
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VI. THE JUDGMENT OF GUARDIANSHIP
SHOULD BE REVERSED AS THE FAMILY PART
JUDGE ERRONEOUSLY RELIED ON SUPPOSED
HARM FROM SEPARATION FROM THE
TEMPORARY CAREGIVERS AS A BASIS FOR
CONCLUDING THAT TERMINATION OF
PARENTAL RIGHTS WOULD NOT DO MORE
HARM THAN GOOD.
We have reviewed the record and it informs our decision. Divina's
children are I.A.C.C., age seven (Ignacio); J.S.C.C., age five (Josefina);
A.I.C.C., age three (Antonia), and I.C.C., age two (Ian). Their father is
J.J.C.B. (Javier). Divina and Javier have an additional child, S.C.C., age one,
(Sam), who is presently in the custody of the New Jersey Division of Child
Protection and Permanency (Division). Sam is not involved in this appeal.
Prior to the Division's involvement, Javier and Divina were investigated
by New York Child Protective Services after a report that Javier assaulted
Divina during an argument in which the couple smashed objects, including a
crib, in the presence of then three-month-old Ignacio. Javier was arrested, and
an order of protection was issued. Nevertheless, their relationship continued.
The New York police received eight calls concerning domestic violence
between the parents between 2015 to 2018.
In spring of 2018, Javier left New York and moved to Vineland, New
Jersey. He was homeless. Within a few weeks, Divina disclosed the address
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of the Massachusetts shelter where she and the children were residing. Javier
went to visit her. Javier brought her and the children back to Vineland.
On July 5, 2018, while staying at a motel, Divina called the Vineland
police and reported that Javier was harassing her. This began the Division's
involvement. The local police contacted the Division, who dispatched a
caseworker to meet with Divina at the Vineland Police Department in the early
morning, around 3 a.m.
Divina's account of the events leading up to this first encounter was
rambling and inconsistent. Throughout the record, Divina demonstrated
herself as a poor historian of events, telling irreconcilable and incongruous
accounts depending upon when and to whom she was speaking. Her accounts
often conflicted with her observed behavior. On this day, she claimed she was
five weeks pregnant. She expressed concern that she would lose the baby, due
to low blood sugar, but refused medical care. Divina claimed her arrival in
Vineland was a coincidence: she had intended to drive to Newark, but instead
she got lost and ended up around a hundred miles away in Vineland, where she
coincidentally met Javier's adult son at a gas station.
She was staying at a Rodeway Inn but was out of money. She reported
that Javier's adult son smoked marijuana in the hotel room, which concerned
her because Ignacio suffered from severe asthma. When she left the room with
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him to get some air, Javier assaulted her; the case worker observed "significant
bruising to her inner arms." The Vineland Police arrested Javier.
The Division contacted a domestic violence hotline and found a
placement for Divina and her children at a local shelter. Divina became angry
and refused to go, but eventually stated the Division "could just take them,"
referring to the children. She became confrontational with the caseworker and
refused to provide medical information about the children. At this point, the
Division conducted an emergency removal of the children.
Four days later, on July 9, 2018, the court granted the Division care,
custody, and supervision of Ignacio and Josefina. Two days afterwards,
Divina cancelled a scheduled visit at the last moment, causing the children
visible distress. The following day, Divina met with the Division. She was
living in her car.
Divina and Javier were allowed supervised visits with the children each
week but were kept separate from each other. On July 18, Divina and Javier
arrived together at the Division office, without an appointment. Divina said,
"God spoke to her and told her that she was getting her children today, and she
was not leaving until she gets her children." The Division arranged for
separate same-day visits for both parents. The visits went well, and Ignacio
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and Josefina were happy to see their parents. However, that same afternoon,
police responded to a separate simple assault incident involving the couple.
Later that August, Divina cut short a visit with the children and
instructed the Division to return them to their placement home, which caused
Ignacio and Josefina to cry. Divina was then psychologically evaluated at the
Division's request. During the evaluation, she disputed the Division's referral
information, including whether she was homeless, whether she and Javier had
a continuing relationship, whether they lived together, and whether Javier had
ever assaulted her. She reported she suffered from post-partum depression
when Ignacio was born and that she had attended four months of
psychotherapy at that time in order to treat it. The evaluating doctor
recommended Divina undergo psychotherapy with a clinician who specializes
in psychopathy, further psychiatric evaluation, and parenting skills training.
He also recommended the Division maintain the current supervised visitation
plan.
Police responded to two more incidents involving the couple that same
August. At the end of the month, the parents were separately interviewed by
the Division. Divina reported she had become involved with Javier four years
earlier. Javier started using drugs and alcohol, and he beat her while she was
pregnant with Ignacio. She reported in December 2015, shortly after Ignacio
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was born, Javier ambushed and raped her. In response, she obtained a
restraining order, which she later dropped when Javier began attending court -
ordered services. She then explained that about a month prior to Division
involvement, in May 2018, Javier came into her house, hit her, "went crazy"
and destroyed her stuff, smashed the taillights on her car, and flattened her
tires. Therefore, she said, she left to go to the Massachusetts shelter,
precipitating her arrival in Vineland.
On October 2, 2018, the Division referred both parents for psychiatric
evaluations, and Divina began weekly individual therapy at the Division
office. She was employed, lived at a rooming house in Vineland, and was
saving so she could rent an apartment. Through Community Treatment
Solutions (CTS), Divina continued supervised visitation with the children; the
visits generally went well. However, she also missed some parenting classes
during this time and was non-compliant in attending therapy.
In November 2018, Divina's assigned therapist referred her for a
psychiatric examination. On January 15, 2019, Divina kicked and punched the
Division permanency supervisor at the Division office at the end of a visit with
Ignacio and Josefina. After this, she was not permitted to have contact with
Division staff without police present. Divina missed several visits from
January 2019 through April 2019.
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In April 2019, Antonia was born. The Division removed Antonia from
the hospital and placed her in a separate home from Ignacio and Josefina.
Divina began to visit all three children, together. She would frequently bring
them toys and food. Divina re-entered therapy around this time and was
consistent for sixty-two weeks.
However, in July 2019, the Vineland police responded to four incidents
with allegations of simple assault, defiant trespass, and harassment involving
the parents. That same summer, Divina began living in a studio apartment
with Javier. The police responded again to a domestic dispute between the two
in November 2019. On November 6, 2019, the Division filed a complaint
seeking guardianship of the four children. 2
In February 2020, Ignacio and Josefina were transferred to a new foste r
family. That same month, Ian was born, and was initially placed with Ignacio
and Josefina but was later removed by court order to a different resource
home. Divina called the police about another domestic dispute towards the
end of the month.
In March 2020, Governor Murphy declared a State of Emergency related
to the pandemic and issued a Stay-at-Home order about two weeks later. The
2
Ian was not part of the original complaint but was added on November 27,
2020.
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family switched to video visitations, due to the circumstances. Divina
continued to attend therapy sessions and domestic violence counseling.
In May 2020, Divina completed her assigned parenting skills and
domestic violence courses. That same month, however, she denied having a
history of domestic violence issues with Javier. The two shared a home
together and were in a "committed relationship" at that time. However, the
police continued to respond to more domestic incidents involving the parents.
Divina told the Division that she wanted Javier to get help, due to an incident
that happened a week earlier. She denied assaulting the Division supervisor in
January 2020, and instead claimed she merely grabbed the supervisor's hand
because she was in labor. 3
In August of 2020, Divina returned to in-person visits with the children.
She was also charged with aggravated assault when she spit on a police officer
who was responding to a domestic dispute call concerning the couple. That
same month, Divina completed another psychological evaluation, telling the
psychologist that she and Javier had been separated for two years, and that
Javier's adult children had threatened to kill her and the children. The
therapist recommended Javier and Divina receive couples' counseling and
3
Antonia was born in April of that year, not January.
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more parenting training, in addition to continuing individual therapy and
supervised therapeutic visitation.
On September 1, 2020, Dr. Alan Lee, Psy.D., evaluated Divina. Dr. Lee
noted that:
[Divina] is psychologically less mature and less
developed than most adults, with propensity to poor
coping, poor stress management, and poor frustration
tolerance. She is characteristically rather impulsive,
reactive, and simplistic in her functioning. There are
concerns of her inconsistent reporting and statements
that raise concerns of an underlying thought disorder,
some psychotic thinking and impaired perceptions of
reality. She is prone to impulsive, aggressive, and
reactive behaviors and attitudes. She is
characteristically rather angry, hostile, and demeaning.
There have been concerns of her aggression towards
others. She has a pending charge. Her knowledge of
parenting and childrearing are rather limited and poor,
especially for someone who has given birth to four
children and [is] expecting their fifth child. Her
prognosis for significant and lasting changes is poor.
She is not supported as an independent caretaker of
the minor children at this time and within the
foreseeable future. As such, the most central and
principal recommendation is for other permanency
planning for the minor children besides reunification
to birthmother.
A week after this, on September 8, defendant completed yet another
psychiatric evaluation. The psychologist recommended a mood stabilizing
agent to augment her current time in therapy. At a meeting with the Division a
week after, Divina disclosed that she was once again living with Javier.
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Divina began to miss visits with the children throughout October and
November of 2020, despite the Division offering accommodations. Divina
returned to visits in the middle of December.
In April of 2021, the couple had another encounter with police, and
Javier spent a night in jail. Javier was convicted of harassment, and as a result
the State of New York issued another order of protection between the parents
on April 6, 2021. A few days later, New York police again responded to a
domestic dispute involving the parents.
On April 14, 2021, Divina contacted the Division in distress because she
was about to be evicted, and Javier had taken the rent money for himself.
When the Division reached out to Javier, he expressed concern for Divina's
mental health, and stated that he did not want to live with her anymore, while
conceding he was currently spending the night at her place. Divina was
scheduled for another psychiatric evaluation the following week, but she
cancelled the appointment.
In May 2021, she and Javier began joint supervised visits with the
children, at the recommendation of their service provider, CTS. The visits
went well. However, Divina then missed five of her last nine therapy sessions.
A letter from her therapist to the Division attributed her poor attendance (after
sixty-two weeks of consistent performance) to recent financial and housing
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issues. The letter also noted that "Divina has always been concerned with her
children and the desire to get them back."
In June 2021, CTS recommended that the couple be given the
opportunity to visit the children together, unsupervised. The Division
declined, citing the parents' lack of therapeutic progress in other areas.
On August 18, 2021, police were dispatched to the parent's home to
respond to another domestic disturbance. About a month later, on September
15, Javier called the police to report that Divina had smashed his car windows
with a brick. This incident ended the couple's joint visitation with their
children. During the trial Divina was served with a temporary restraining
order which prohibited contact with Javier due to the brick incident.
The five-day trial commenced on June 23, 2021, and concluded in
September. The Division presented testimony from Division workers Zaleen
Concepcion and Brenda Rosado, Millville Police Officer Carlos Vazquez, and
Alan J. Lee, Psy.D. The children's Law Guardian presented no testimony but
supported termination. Neither parent testified, but Divina presented
testimony from her expert, David Bogacki, Ph.D.
As of the time of the trial, Divina was receiving individual counseling,
couples' counseling, parenting skills training, and therapeutic visitation on an
ongoing basis. The Division had referred her to a psychiatric evaluation to
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determine if she needed medication. Ignacio and Josefina were in a non -
adoption home and were looking for a pre-adoptive family. Antonia and Ian
were in separate homes, but each foster family was willing to adopt.
The Division's expert, Dr. Lee, opined in favor of terminating both
parents' rights based on his earlier psychological examination as well as the
bonding evaluation of the children. Dr. Lee used a multi-method approach
with multiple procedures, including an interview component, various
psychological tests, and a review of other material provided to him from the
Division.
As a result of his analysis, Dr. Lee "provisionally" diagnosed Divina as
having an "unspecified schizophrenia spectrum and other psychotic disorder."
He noted that "[she] appeared to often deny events that were otherwise
reported by people," she had "a propensity towards inconsistent types of
behavior," and she lacked impulse control. He also described her "heightened
level of anger" and "propensity for aggressive types of behaviors and
attitudes." The children, he concluded, were therefore at a heightened risk of
exposure to unsafe, violent situations. Dr. Lee's prognosis for change was
poor; Divina's problems were "chronic," "difficult to remediate," and adversely
impacted her ability to care for her children.
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Dr. Lee also conducted bonding evaluations, which resulted in his
determination that each child shared an ambivalent and insecure relationship
with Divina. He opined there was a low risk of severe and enduring harm if
the relationship were to be severed. Accordingly, Dr. Lee recommended
against reunification.
Divina's expert, Dr. Bogacki, never met with Divina or the children and
so was limited to offering a critique of Dr. Lee's methodology and conclusion.
Dr. Bogacki disputed Dr. Lee's interpretation of Divina's defensive respon se to
certain psychological tests, which in his view compromised the results. Dr.
Lee rebutted this characterization, noting that Divina's defensiveness "was and
is an important finding."
The trial court issued its oral decision on October 20, 2021, terminating
both Divina and Javier's parental rights. The court issued findings pertaining
to the four-prong best interests of the child test delineated in N.J.S.A. 30:4C-
15.1(a). It found that the Division proved each prong in turn by clear and
convincing evidence and terminated both parents' parental rights. Defendant
appealed. Javier did not.
I.
We review a family court's decision to terminate parental rights to
determine whether "the decision . . . is supported by substantial and credible
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evidence on the record." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J.
420, 448 (2012) (internal quotation marks and citations omitted). We defer to
the factual findings of the family court, due to that court's special expertise in
family matters, and the inadequacies of a cold record. Ibid. "We will not
overturn a family court's fact findings unless they are so wide of the mark that
our intervention is necessary to correct an injustice." Ibid.We review issues of statutory interpretation de novo. McGovern v.
Rutgers, 211 N.J. 94, 108 (2012). A trial court's statutory interpretation is
nonbinding. Ibid. Before this court is an interpretation of the 2021
amendment to prong two of best interests test contained in N.J.S.A. 30:4C-
15.1(a). We review this interpretation de novo and need not defer to the trial
court's judgment. McGovern, 211 N.J. at 108.
"A parent's right to enjoy a relationship with his or her child is
constitutionally protected." In re Guardianship of K.L.H., 161 N.J. 337, 346
(1999). The State may terminate parental rights to protect the welfare of the
children, but this is a limited power, applying only in circumstances where the
parent is unfit, or the child has been harmed. In re Guardianship of J.C., 129
N.J. 1, 10 (1992). Children also have the right to a permanent, safe, and stable
placement. N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 76, 111
(App. Div. 2004).
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To balance these competing interests, courts apply the "best interests of
the child" test, which is codified in N.J.S.A. 30:4C-15.1(a). That statute
delineates a four-part inquiry which, taken as a whole, determines whether
termination of parental rights is in a child's "best interests":
1. The child's safety, health, or development has been
or will continue to be endangered by the parental
relationship;
2. The parent is unwilling or unable to eliminate the
harm facing the child or is unable or unwilling to
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm;
3. The division has made reasonable efforts to provide
services to help the parent correct the circumstances
which led to the child's placement outside the home
and the court has considered alternatives to the
termination of parental rights; and
4. Termination of parental rights will not do more
harm than good.
[N.J.S.A. 30:4C-15.1(a).]
To prevail, the Division must establish the above standards by "clear and
convincing" evidence. N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J.
591, 604 (1986). This denotes a burden which lies between a preponderance
standard and a "beyond a reasonable doubt" standard; it should produce "a firm
belief or conviction as to the truth of the allegations sought to be established."
In re Purrazzella, 134 N.J. 228, 240 (1993).
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II.
First, we address Divina's argument that the trial court improperly
considered evidence of the children's relationship with their foster parents in
violation of prong two of the best interest test. That prong was recently
amended by the Legislature, which removed the sentence: "[s]uch 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." N.J.S.A. 30:4C-15.1(a)(2) (amended 2021). The Legislature did not
alter the other components of the best interest standard.
Divina argues that this deletion is dispositive on its face, and the
removal of such language means all evidence concerning a child's relationship
with resource caregivers is barred, even in the context of other prongs of the
best-interest standard. We recognize that prong two as amended emphasizes
consideration of whether a parent is able to overcome harm to the child as well
as whether the parent can cease causing future harm. The amendment clearly
isolates those specific inquiries from consideration of the bonds a child has
forged with resource caregivers. Nevertheless, we do not understand the
amendments to prong two to mean that such a bond may never be considered
within any part of the best interests analysis.
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Neither the legislative history nor the plain text necessitates such a
sweeping conclusion. First, there is the text itself. Taken as a whole, the
statute still requires a finding that "[t]ermination of parental rights will not do
more harm than good." N.J.S.A. 30:4C-15.1(a)(4). "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 that parent." N.J. Div. of Youth & Fam. Servs. v. E.P., 196
N.J. 88, 107 (2007).
The court must make an evidentiary inquiry into the status of children in
placement, to determine whether the child is likely to suffer worse harm in
foster or adoptive care than from termination of the biological parental bond.
N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 281 (2007) ("[T]o
satisfy the fourth prong, the State should offer testimony of a well-qualified
expert who has had full opportunity to make a comprehensive, objective, and
informed evaluation of the child's relationship with both the natural parents
and the foster parents.") (internal quotation marks and citations omitted).
Prong four allows a court to find that remaining with an otherwise
"unfit" parent is still within a child's "best interests" if there are significant
concerns about the Division's ability to place a child with an appropriate
caregiver. The court has used prong four to effectuate this exact result in t he
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past. N.J. Div. of Youth & Fam. Servs. v. L.M., 430 N.J. Super. 428, 454
(App. Div. 2013). "Although [father] is not without his parental flaws, he has
maintained a consistent interest in providing for [daughter] since his release
from prison. . . . Given [daughter's] bleak prospects for adoption, the
termination of her parental rights does not appear to have any real
compensating benefit." Ibid. The L.M. court ruled against the Division,
finding that it had failed to prove that termination would not do more harm
than good. Ibid.Additionally, removing the court's access to information concerning the
child's ability to forge bonds with resource caregivers would disharmonize the
statute. Resource placements may include relative caregivers. Legislative
materials indicate that a preference for the preservation of parental rights and
kinship care was the specific concern in enacting the amendment.
Specifically, the Legislature found that:
a. Foster care is intended by existing state and federal
statute to be temporary.
b. Kinship care is the preferred resource for children
who must be removed from their birth parents. There
are many benefits to placing children with relatives or
other kinship caregivers, such as increased stability
and safety as well as the ability to maintain family
connections and cultural traditions.
....
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d. Parental rights must be protected and preserved
whenever possible.
e. Children are capable of forming healthy
attachments with multiple caring adults throughout the
course of their childhood, including with birth parents,
temporary resource parents, extended family members,
and other caring adults. . . .
f. The existence of a healthy attachment between a
child and the child's resource family parent does not in
and of itself preclude the child from maintaining,
forming or repairing relationships with the child's
parent. . . .
g. It is therefore necessary for the Legislature to
amend current laws to strengthen support for kinship
caregivers, and ensure focus on parents' fitness and the
benefits of preserving the birth parent-child
relationship, as opposed to considering the impact of
severing the child's relationship with the resource
family parents.
[2021 N.J. Sess. L. Serv. Ch. 154 (Senate 3814) (West).]
The Legislature then went on to make several alterations to the code,
most of which strengthened the position of kinship caregivers. The law was
clearly intended to reflect a preference for viable kinship guardians and fit
parents over unrelated foster caretakers. E.g., 2021 N.J. Sess. L. Serv. Ch. 154
(Senate 3814) (West) (amending definition of kinship "caregiver" in N.J.S.A.
3B:12A-2 to allow a shorter cohabitation period). Because barring all
evidence of foster placement, as defendant advocates, could actually harm a
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parent or kinship guardian's petition to retain rights, the Legislature's goal
would go unfulfilled.
Illustratively, on May 17, 2021, (the day the bill was released) the
Assembly Health Committee specifically considered the alteration to prong
two. Assembly Health Committee Meeting, (Monday, March 8, 2021)
(https://njleg.state.nj.us/archived-media/2020/AHE-meeting-list).
Assemblywoman DeAnne DeFuccio expressed concerns regarding the deleted
language. Id. at 43:35. Legislative aide Francesco Ferrantelli responded:
[T]he intention of removing that language is because
leading practice tends to focus on the harm from
separation from foster families, sometimes at the
exclusion of other factors. And we just want to make
it clear in the statute that the judge should be
considering the totality of the circumstances in every
case in evaluating facts and making a particularized
decision based on the best interests of each child. . . .
We just want to make it clear in terms of the guidance
that we give judges going forward, and litigants, that
they are considering all harm and not focusing on one
particular type, so they make decisions tailored to
each individual child.
[Id. at 44:35 (emphasis added).]
This emphasis on a "totality of the circumstances" approach is supported
by the Court's longstanding interpretation of N.J.S.A. 30:4C-15.1. 4 And to
4
The New Jersey Supreme Court has clarified, even prior to the amendment,
that "[t]he protection of parental rights continues when a child is placed in
foster care." N.J. Div. of Youth & Fam. Servs. v. I.S.S., 202 N.J. 145, 170
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fully consider the "totality of the circumstances" courts must, at the very least,
consider the child's bond to a current placement when evaluating prong four,
as discussed above. The legislative history and plain text, therefore, do not
support the broad prohibition on this type of evidence, as defendant proposes.
We construe the deletion from prong two more narrowly than defendant
urges, in a way that gives greater effect to the alteration, in a manner that
remains coherent with prong four. The amended statute, in our view, requires
a court to make a finding under prong two that does not include considerations
of caregiver bonding, and then weigh that finding against all the evidence that
may be considered under prong four—including the harm that would result
from disrupting whatever bonds the child has formed. This is what the court
did in L.M., 430 N.J. Super. at 458.
Thus, we discern no misapplication of the best interest analysis under
either prongs two or four based upon the record.
III.
Addressing defendant's various evidence arguments, which we have
thoroughly considered, we conclude they are without merit. There is no
________________________
(2010) (internal quotation marks and citations omitted). "It is well established
that the period of time a child has spent in foster care is not determinative of
whether parental rights to that child should be terminated. . . ." Ibid. This
reflects a totality approach to the evidence that the Legislature was attempting
to emphasize, rather than hamper.
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evidence that the Division fell below the standard established by N.J.S.A.
30:4C-15.1(c), whereas uncontroverted testimony supports the court's
conclusion. We review findings of fact on a deferential basis, and there is a
multitude of support for the trial court's determination to sever parental rights
to the four children.
Confronted with this record, we note the trial court concluded that: 1)
under the first prong, defendant's violent relationship with Javier constituted
harm; 2) under the second prong, the continued tumult in that relationship,
coupled with Divina's mental instability, established that she was unable to
remedy the harm; 3) the Division had provided reasonable services and no
alternative familial guardian was feasible; and 4) at that time, the resource
placements would not result in greater harm than good.
The judge's opinion gave thoughtful attention to the importance of
permanency and stability from the perspective of the child's needs and found
the Division had established by clear and convincing evidence the statutory
grounds for termination of defendant's parental rights. Furthermore, the judge
found the Division had proven all four prongs of the best-interests test,
N.J.S.A. 30:4C-15.1(a), which permits termination of parental rights. In re
Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). We have reviewed the
record and do not conclude that reliance upon embedded hearsay and other
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excludable evidence prominently undergirded the four prongs, and if some
evidence was improperly considered, it constituted harmless error. The trial
judge, when making specific findings, was exclusively concerned with
defendant's parental fitness, largely as a result of her own behavior, the ample
evidence of continued domestic violence between the parents, and the lack of
consistent progress despite reasonable efforts by the Division. The remaining
arguments are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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