DCPP VS. D.S., IN THE MATTER OF THE GUARDIANSHIP X.S. and D'A.S. (FG-20-26-18, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-1314-18T3
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Appellant/
Cross-Respondent,
v.
D.S.,
Defendant-Respondent.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF
X.S., a Minor,
and
D'A.S., a Minor,
Respondent/Cross-Appellant.
_____________________________
Argued telephonically June 24, 2020 –
Decided August 11, 2020
Before Judges Accurso and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County,
Docket No. FG-20-0026-18.
Sara M. Gregory, Deputy Attorney General, argued
the cause for appellant/cross-respondent (Gurbir S.
Grewal, Attorney General, attorney; Donna Sue Arons
and Melissa H. Raksa, Assistant Attorneys General, of
counsel; Elizabeth Erb Cashin, Deputy Attorney
General, on the briefs).
Todd S. Wilson, Designated Counsel, argued the cause
for respondent/cross-appellant D'A.S. (Joseph E.
Krakora, Public Defender, Law Guardian, attorney;
Todd S. Wilson, on the briefs).
Ted Gary Mitchell, Deputy Public Defender, argued
the cause for respondent D.S. (Joseph E. Krakora,
Public Defender, attorney; Ted Gary Mitchell, of
counsel and on the brief).
Nancy P. Fratz, Assistant Deputy Public Defender,
argued the cause for minor X.S. (Joseph E. Krakora,
Public Defender, Law Guardian, attorney; Nancy P.
Fratz, on the brief).
PER CURIAM
The Division of Child Protection and Permanency and the Law Guardian
for sixteen-year-old David1 appeal from a November 1, 2018 order terminating
this guardianship litigation based on the trial judge's decision that the Division
1
The boys' names and that of the resource parent are fictitious. We employ
pseudonyms to protect their privacy. See R. 1:38-3(d)(12).
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2
failed to prove the second and fourth prongs of the best interests standard,
N.J.S.A. 30:4C-15.1(a), at trial. The Law Guardian for David's twin brother,
Samuel, although urging termination at trial, now sides with the boys' father,
defendant D.S., urging that we affirm. Because we are convinced by our
review of the record that the trial court failed to apply the correct legal
standard in analyzing the second and fourth statutory prongs, frustrating the
paramount goal of permanency, and erroneously excluded the opinion of the
Division's testifying psychologist, we vacate the order and remand for
expedited proceedings to bring this case to conclusion.
The issue in this appeal is the judge's interpretation of the second and
fourth prongs of the best interests standard applied to the facts. The facts
themselves are almost entirely undisputed. Neither defendant nor the Law
Guardians presented any evidence at trial, and the judge found the Division's
witnesses competent and credible, with the exception of his rejection of Dr.
Dyer's opinion on the boys' need for permanency, which is at the center of the
case. Defendant did not testify and absented himself for part of the trial.
Here are the essential facts. The boys lost their mother when they were
not yet three. Their father, defendant D.S., has long-standing mental health
problems that have seriously affected his ability to care for his sons.
A-1314-18T3
3
Defendant has never held an identifiable job, and the Division has never had
more than a temporary address for him, although it's been involved with
defendant and his sons for over ten years now. The boys' teachers reported the
boys missed school and Samuel sometimes appeared dirty, smelly and hungry.
Samuel also reported some fear of his father, whom he claimed hit him when
he didn't do well, or things didn't go right.
The boys lived with a girlfriend of defendant's for some unspecified time
and his sister may have likewise had a custody order in her favor at some
point, but they were not removed from his care until December 2012, after
defendant was twice substantiated for abuse and neglect.2 The boys were then
eight-years-old. They were placed with their maternal grandmother, who kept
them for over two years while the Division tried to effect reunification. David
and Samuel were returned to their father's care in February 2015, but the
reunion was brief, lasting only three months. The Division removed the boys
again after defendant failed to pick them up from an after-school program.
Defendant told police at 7:00 p.m. that he was on his way over, but he never
2
The trial judge's decision to not "clutter the record" with the worker's contact
sheets and summaries has made some of the specifics of the history difficult to
ascertain. Although annoying, it has not impeded our review.
A-1314-18T3
4
arrived. He was apparently so drunk he didn't realize the children weren't
home until the following morning.
The boys could not be placed with their grandmother again on account of
her advancing dementia. No other relatives were available, so the Division
placed the boys in a resource home with "Ms. K," who has cared for them
since and wishes to adopt both boys.
Although referred by the Division to a myriad of programs, defendant
has never meaningfully engaged in mental health or substance abuse treatment,
although the experts opined he needs both. Defendant's failure to even return
for a follow-up appointment prevented the Division's psychiatric expert from
offering more than a "rule-out" diagnosis. Dr. Sostre testified that defendant is
enormously suspicious and guarded and his thoughts so disorganized that it is
difficult to have a normal conversation with him. She had no doubt defendant
suffered from a mental disorder, manifested by a "detachment from reality,"
but could not say whether it was a psychotic disorder, a bipolar disorder, or
paranoid personality disorder. She did offer that defendant's thoughts were so
disorganized that she would be concerned with him having any children in his
care, no matter their age, "[e]ven if they were 17 years old."
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Before talking about the remainder of the trial testimony, we divert to
address something about the procedural history, which appears to have colored
the judge's analysis of the issues. The Division first brought this case to trial
in 2017. After the Division presented the testimony of at least one witness, the
parties engaged in mediation to explore the possibility of kinship legal
guardianship, "an alternative permanent placement option without the need for
termination of parental rights and 'where adoption is neither feasible nor
likely[.]'" N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 223
(2010) (quoting the Kinship Act, N.J.S.A. 3B:12A-1(c)).
That solution was abandoned when the resource parent, Ms. K,
determined she was not prepared to partner with defendant after he showed up
drunk at her house one Sunday morning at 6:00 a.m., demanding to see the
boys. Defendant was yelling something about not letting anyone bully his sons
and wanted to accompany them to school. Ms. K explained it was Sunday, and
there was no school. Defendant insisted it was Friday. He appeared again the
following night, pursuing the same theme. Because the Division believed the
boys were against adoption at that point, the guardianship was not immediately
reinstated.
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After the Division reinstated the guardianship action in January 2018,
counsel were before the court on the order to show cause explaining that the
twins, who were then thirteen, had different views on adoption. David wanted
to be adopted by Ms. K, while Samuel wanted to remain with her but not be
adopted. Counsel for defendant expressed frustration with Ms. K's rejection of
KLG, defendant's preferred resolution.
KLG was accepted by this foster parent. And, then,
all of a sudden, I don't know what happened. She says
she doesn't want it anymore. This — this is the tail
wagging the dog. Is — is she in charge of this? That
— does the Division have anything to say? Do the
children's opinions mean anything? Is — is it just this
woman that says one day, "KLG, I think, is great."
The next day, "KLG is not so great." You know? We
— I hear about backlogs, this is the kind of thing that
backlogs our courts. Cases that don't need to be tried.
Somebody has got to sit down and tell these foster
parents, you know, which is it? You can't just be
playing with people's lives. It makes her feel better. I
read all sorts of documents about what this woman
says. It will make her feel better. Well, it's not her
that has to feel better. It's the children. One of them
specifically says, "I don't want to be adopted." And I
thought we had the perfect solution. Kids that don't
want to be adopted, a woman willing to do KLG, we'll
do KLG. Well, if she doesn't want to do KLG
anymore, then return these children. We'll find
somebody who probably wants the best of both worlds
for these children.
The judge responded to counsel's statement as follows:
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Well, there's a part of me that understands precisely
what [counsel for defendant] is saying. And I don't
know — I don't really see the huge difference between
KLG and adoption. And the closer a child gets to age
18, and these children are 13 — 13 and a half, I — I
just can't see — and they obviously know their father.
Father is interested in them. I just really don't — don't
see the distinction between adoption and KLG, by that
point, becomes almost meaningless. Because the only
basic fundamental difference is, in adoption, the —
the adopting parents get complete discretion as to
whether or not the children will see — have any time
at all, or any contact with the father. And, in KLG,
the judge gets to decide that. So, that's the only
difference. I don't get it.
When defense counsel again expressed his frustration with having to go
forward, the judge ended the discussion by saying:
Did you just hear me explain how little difference
there is between KLG and adoption? And how the
children get older the less difference there is between
those two things? . . . I'm going to repeat it.
Termination is a last resort. That's the last thing we
want to do. Period.
When the case came on for trial, the Division presented two fact
witnesses who testified about their observations of defendant's relationship
with his sons, Samantha Maytidu, a licensed masters mental health clinician,
who oversaw defendant's therapeutic visitation of his sons for Cooperative
Counseling Services, and Leonard J. Cusumano, the adoption worker assigned
to the family.
A-1314-18T3
8
Maytidu testified that defendant rarely missed a weekly visit with his
sons, that the visits often went well because there was genuine affection
among the three of them, but that defendant also often acted or spoke in ways
that were inappropriate, causing her to have to counsel and redirect him, with
varying degrees of success. Maytidu explained the counseling service does not
permit parents "to discuss court proceedings," or to "speak negatively about
the children's resource parent," and "also [doesn't] expect that the parent is
going to disclose and discuss hardships of their own in front of the children."
Maytidu testified defendant often had difficulty following those rules ,
especially the last one. She explained that defendant could sometimes be so
inappropriate, blaming the children, particularly Samuel, for things clearly not
their fault, that Samuel would cry. Asked for an example, she recounted a
time recently when defendant "agitated and upset" over having been
discharged unsuccessfully from his mental health day program, "ended up
telling [Samuel] that it was his fault that the program had discharged"
defendant.
Maytidu testified defendant appeared to favor David, having "higher
expectations" for him and paying him more attention during visits "either
doing his hair, or talking about his grades or his sports rather than focusing on
A-1314-18T3
9
both children evenly." In contrast, defendant would sometimes "just display so
much anger onto [Samuel], where he would tell [Samuel] it's your fault, I'm
kicked out of my program. It's your fault that you and your brother are not
with me anymore."
Maytidu testified that "obviously, as a child, when you're — you're
hearing that from your parent, whom you love, it's hard. It's hard for a child to
understand." She testified such episodes occurred often. Although she would
try to explain to defendant "that it's not appropriate to discuss these [problems]
with your children, because there's nothing — they don't have control. They
can't help you, and it puts a burden on them, emotionally, and
psychologically," she could not make defendant understand how his actions
affected his sons.
According to Maytidu, David and Samuel are very different, and
responded differently to their father's complaints about his hardships and
difficulties. "[S]o — while [David] is still impressionable, he does not present
as vulnerable as [Samuel]. He does not present as emotional as [Samuel] and
he's able to articulate a little bit more than [Samuel] can." Maytidu described
Samuel as "a lot more vulnerable, more impressionable and much more
parentified." Asked to explain, she testified that in "the child/parent dynamic,
A-1314-18T3
10
it's the parent who usually is the one to attend to the child's emotional needs,
physical needs, psychological needs." With a child who is parentified, there's
"a role reversal between parent and child." Here, in Maytidu's view, Samuel
has been made to feel responsible for his father.
Maytidu referred to a visit following Father's Day as an example.
According to Maytidu, defendant was irate because the children had neglected
to reach out to him on the holiday. Defendant "made inappropriate statements
toward his children," and also complained that he was "broke, and he ha[d] no
electricity, and no place to sleep, and disclosed his hardships — his financial
hardships, his unstable financial ability, his housing, and just repetitively kept
saying to them that it was unacceptable that they didn't reach out to him
despite him just celebrating their birthday with them."
Although both boys told Maytidu that they were used to his rants, David
told her in June 2018 that he wanted "normalcy" and "not having the Division,
essentially, control his life." He explained that "coming to these visits," while
allowing him to see "his father, . . . also put a barrier between the things that
were important to him," such as sports and going to games. Maytidu saw
Samuel, on the other hand, surreptitiously pass his father money under the
table once when defendant told him he needed money.
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Maytidu testified she never saw defendant "put his hands" on either boy,
but that he would threaten to do so on occasion, causing Samuel, who had
previously claimed his father beat him, to be fearful and cry. When she
confronted defendant, he told her "he didn't care that [she] was there, that if,
you know, he needs to hit them, like, he will, regardless of the circumstance or
who is present, or who is watching." Cooperative Counseling Services ended
their oversight of defendant's visits shortly before the re-scheduled
guardianship trial in July 2018, when defendant made a reference to "going
postal" when Maytidu tried to talk to him about the trial. Those remarks
prompted defendant's two-week involuntary commitment to a mental hospital
and the adjournment of the guardianship trial for three months.
Cusumano, the adoption worker, testified to defendant's minimal
compliance with services, Cusumano's observations of defendant with his sons,
the boys' life with their resource parent, and their changing views on adoption
during the almost three years he worked with the family. Cusumano stressed
that it was "very hard" to describe his conversations with defendant. He
described defendant's conversational style as "tangential in nature." They
would one minute be discussing "something that's serious like we'll talk about
a service or we'll talk about maybe finances or something of that nature, and
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then it's going to be about this persecution kind of field, and then it just goes
on — it snowballs out of control."3 Cusumano explained "it was always very,
very difficult to get real salient information" from defendant and Cusumano
was never "entirely sure that [defendant] got the message that [Cusumano] was
trying to relay."
Cusumano had observed several recent visits between defendant and his
sons. He testified the visits had been generally positive but noted a marked
change in Samuel's interaction with his father, in that he recently "stood up for
himself" more, and was less inclined to "do[] as he was immediately
instructed."
Cusumano testified the boys were "thriving" in Ms. K's care. He
described the relationship between the boys and Ms. K as very warm, and that
they had developed "a comradery with one another to where they would be
able to joke, and tease, and, you know, play . . . like just normal like family
interaction." Cusumano agreed that Samuel was "the more emotional" of the
brothers, and that Ms. K, who the boys referred to as "Ma" or "Grandma,"
3
Cusumano testified that defendant was enormously defensive and often
responded to suggestions for services as an insult to his intelligence, or
"[Cusumano] as a white man coming at him." Defendant was also resistant to
a medication regimen, believing "the medicines may have been concocted with
things that could get him in trouble, like THC or alcohol."
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"kind of coddles him a little bit more on that level, because he has that
emotionality about himself." Cusumano testified that Samuel was doing better
in school, "had a good understanding" of Ms. K's expectations of him and
worked to meet them, adhering to the rules she established.
As for David, Cusumano described him as a gifted athlete, "almost 6'2"
and likely has room to grow a ton more." Cusumano explained that Ms. K
can't impress on David enough "that he needs to be able to focus on school in
the event that an athletic career cannot be achievable," but also goes to all of
his games, "yelling, and, you know, being the fan. So, she . . . presents that
element" in David's life.
Cusumano testified that Ms. K has adult children and that her daughter
and her family live a block away. Ms. K's grandson, Eric, who is in his mid-
twenties, "is very involved with the boys," playing video games with them and
taking them places. He's helped David get involved with AAU basketball, and
acts, not only "like the big brother" but as a mentor to both boys.
Cusumano explained that he had several conversations with the boys
about "permanency planning." In January 2017, when he asked David how he
felt about adoption, David told him "he did not care so long as he could see his
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father." David also said "he felt safe and comfortable" living with Ms. K and
felt close to her and her family.
A few months later in April, after the Division had dismissed the
guardianship, David asked him what was going on with the adoption.
Cusumano told him it was "off the table" because neither he nor his brother
wanted to be adopted. David immediately replied that that was not true as far
as he was concerned, and that, so long as he didn't have to change his last
name, he wanted to be adopted by Ms. K.
Cusumano had a conversation around the same time with defendant
about his desires. Cusumano noted defendant "did not feel he was capable of
taking custody of his children, but he was opposed to adoption because he
thought there would be some middle ground, where he could continue to have
contact with his children." Cusumano testified it was clear to him through
conversation with defendant that "he did not really understand KLG," but
thought it "was a good idea."
In May 2018, Samuel told Cusumano he didn't "mind being adopted,"
but had reservations "because he didn't want his . . . dad to feel that he was
choosing one side over the other." He also didn't want to be known "as the
adopted kid." Notwithstanding, his father's feelings, Samuel thought adoption
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by Ms. K would be a "better plan" for himself. David was clear that he wanted
to be adopted. The boys argued briefly, with David accusing Samuel of being
responsible for the delay in the case by going "back and forth" about adoption.
Cusumano immediately corrected that misconception, explaining to both boys
that Samuel's feelings about adoption were not a contributor to the delay in the
case.
Cusumano testified that David remained disturbed by how long
everything was taking. Cusumano explained that David's AAU team had
upcoming tournaments in Baltimore and somewhere in California, and David
was frustrated that in addition to "Ma's" approval, he needed to secure the okay
of the Division to go. David told Cusumano, "I just want this to be over, and
. . . to be normal." Cusumano testified David was getting "more fed up" with
the Division's involvement in their lives and his situation remaining unsettled.
Cusumano talked to both boys again about adoption in June 2018, in
advance of the July trial date, Samuel reiterated, on balance, that he'd prefer
adoption by Ms. K. Weighing the pros and cons, he'd decided living in a home
is better than "being on the streets." David likewise remained committed to
adoption.
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Cusumano testified that the Division's plan for the boys was adoption by
Ms. K. Asked why, he responded: "[b]ecause she has provided this
environment, this stable home. She's [been] able to meet all of the children's
basic needs, and — and other needs that aren't identified as basic needs." Ms.
K has provided the boys "consistent direction" and "a loving home."
Cusumano also stressed that Ms. K has the support of her family, and
particularly of her grandson, Eric, who has become an important figure in the
boys' lives. Cusumano explained that Ms. K and Samuel and David have just
become this tight knit "little family." He again described both boys as
"thriving" in Ms. K's care.
Ms. K also testified. She immigrated to the States from Africa, and
reading the transcript makes clear English is not her first language. She
testified that both Samuel and David were doing "[v]ery well. In school and
activities and my house they are doing very well." She explained that when
the boys first arrived, both misbehaved for about two months, Samuel more
seriously than David. Samuel "had a temper" and would "get mad" and throw
fits. Ms. K explained that "[y]ou know, I figure out if it's my grandson I
wouldn't throw him out. I have to take care of him. So, I make sure he calm
down, and feeling good." Now both boys are doing better in school, David
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making the honor roll and Samuel getting close. The boys clean their rooms,
take turns taking out the garbage and even do their own laundry.
Asked about her plans for Samuel and David, Ms. K replied:
My plan for them to go to school, and finish their
college, and be somebody that they're supposed to be.
Because [David] like basketball a lot, and he always
practice it, and now he's have a team, and doing well
in school, and then practice — you know, playing the
basketball, I'd like him to — I'd like both of them to
be in their feet as somebody — you know, everybody
supposed to be.
Asked what she wanted her relationship with the boys to be, she said,
"I'd like them to be my children. I like them to be my family." Ms. K
explained she was "raising them like I raised my kids." She testified that she
had defendant to her home and included him in Thanksgiving dinner with her
family but "changed her mind" after the incident of him appearing drunk and
demanding to see the boys at 6:00 a.m. on a Sunday morning. Asked whether
she understood that defendant was mentally ill, she replied that she felt "like
something wrong with him, because he came back again the next day, Monday
evening with somebody. That time he's not drunk, but still on the same case.
So, I think something wrong with him."
Ms. K testified that she took the boys to see their grandmother in a
nursing home every few weeks and would be willing to have the boys see their
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father also, just not in her home. Asked by the judge whether she would let
the boys meet with their father at a restaurant or elsewhere, she testified she
knew the boys wanted to see their father and would allow that.
Dr. Frank Dyer, a New Jersey licensed psychologist, conducted
psychological evaluations in January 2018 of defendant and David and Samuel
as well as the bonding evaluations relied on by the Division, and his testimony
is central to the issues on appeal.
Dr. Dyer testified that defendant reported "his capability in terms of
parenting these two children as being 100 percent adequate." Defendant
assured the doctor "that the only reason that the boys have been in placement
for so long a time is housing, that he has not been able to secure adequate
housing, and that other than that — every other factor that might pertain to the
safety, and health, and welfare of the children has been covered satisfactorily."
Dr. Dyer diagnosed defendant as suffering from schizotypal personality
disorder with paranoid antisocial and borderline features. He opined that
defendant "does not possess adequate parenting capacity, and that his
prognosis for acquiring adequate parenting capacity within the foreseeable
future was poor." Specifically, Dr. Dyer concluded defendant's
personality problems and, again, the tangential,
scattered, convoluted thinking processes, the
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emotional volatility, the irresponsibility, the
dismissiveness regarding the expectations of others in
terms of standards of care, rules, laws and so forth,
and the — the general wariness — suspiciousness
regarding the motives of others, which would interfere
with [defendant's] accepting direction by child welfare
professionals who are attempting to work with him, all
of those indicate that [defendant] is a very high risk
for a disruption of another reunification.
Regarding his evaluation of both boys, Dr. Dyer noted the number of
different placements the thirteen-year-olds had already endured, their
"placement with [defendant's] girlfriend, removal from that placement,
transferring to the grandmother, removal from the grandmother, reunification
with [defendant]," then having that fail and finally placement with Ms. K.
When Dr. Dyer conducted his assessments, the boys had already been in Ms.
K's care for almost three years.
As to David, Dr. Dyer reported that the boy told him "first and foremost,
he wants to be a professional athlete," which the doctor concluded was not
fanciful, as David may have a chance at a career in professional sports. David
told Dr. Dyer that he likes visiting his father, but is very satisfied with his
current placement with Ms. K. He said Ms. K treats him well and meets all of
his needs. Dr. Dyer testified that judging from David's words and tone that he
"has a very positive emotional connection" to Ms. K.
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David reported that if it were possible "for his father to take him back
then that's where he would like to go, because he wants to be with family."
Dr. Dyer believed that David's early loss of his mother "played into that very
strongly because he's lost one parent and does not want to lose another."
David, however, was also very clear that if it were not possible for him to
return to his father, then "his preference would absolutely be to remain
permanently with his resource parent." Dr. Dyer reported that David
"expressed trust and confidence in Ms. K's promise to him that she would
continue contact between [David] and his father."
Dr. Dyer opined, based on testing he conducted, that David, while of
normal intelligence, has a previously unreported learning disability, affecting
his reading. He also believed the boy suffered some residual effects of
witnessing a domestic violence incident between his father and his father's
girlfriend. Dr. Dyer found David an open and gregarious person, not at all
suspicious or wary. He noted, however, that David has a sense of
powerlessness and lack of control over his circumstances, that is not
uncommon "in children who have been moved around and who have suffered a
number of disruptions in the continuity of their care."
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Dr. Dyer concluded that David does not suffer from any pathology.
Instead, his "problems seem to be more related to situational factors" that
could be overcome. Dr. Dyer offered the opinion that "[t]he greatest
intervention for countering these adverse situational factors, in [his] view, is
permanency, stability in the . . . the family environment where he has realistic
expectations. He's confident that the caretaker is going to provide for him and
so forth."
Dr. Dyer found Samuel "the much more problematic member of the
family." Samuel told Dr. Dyer about his many placements, describing each
one. He spoke warmly of his father, recounting the times he had rubbed his
back during an asthma attack and would confront anyone smoking around
Samuel and warn them to stop because of the boy's asthma.4 Samuel was very
impressed by that.
Samuel also spoke fondly of Ms. K, telling Dr. Dyer "about some of the
things that he was able to persuade [her] to allow him to do like sleeping over
4
Samuel suffers from severe asthma. One of defendant's substantiations for
abuse and neglect arose out of his failure to provide the school, after several
requests, with a nebulizer or medications to be administered to the boy in the
event of an asthma attack. After Samuel suffered from an attack at school, he
had to be taken by ambulance to the hospital. In the course of its
investigation, the Division learned the boys didn't have a pediatrician, despite
Samuel's chronic asthma condition.
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at a friend's house." Samuel also told him about other privileges he'd earned,
including his own cell phone, and a tablet. He was excited about getting a
laptop computer "pretty soon." Regarding the boy's wishes for his future, Dr.
Dyer reported that Samuel told him
in no uncertain terms, that he's already lost one parent,
and he wants to be with his other parent. If he can't be
with his other parent, then he wants to be with a
family member, because his connection to his family
is something that is extremely important to him after
suffering the tragic loss of his mother when he was a
year old.
Based on his testing, Dr. Dyer concluded that Samuel was a "good
artist," with fine hand/motor coordination, and that he does not suffer from the
reading problem David does. Dr. Dyer testified that his psychological testing
of Samuel "conveyed two seemingly opposite psychological characteristics";
the first being "a great deal of anger and aggression," reflected in the school
reports of fighting and Ms. K's early assessment of his behavior in her home,
and the second "a real emotional neediness," reflected in the testimony of
Cusumano and Maytidu. Dr. Dyer explained his overall impression of Samuel
was that he was
in need of therapy to strengthen his capacity for
impulse control, specifically control over his
aggressive impulses, and also to help him to process
some of his experiences, primarily the loss of his
A-1314-18T3
23
mother, but additionally the number of disruptions in
the continuity of his care that he has experienced
along with his brother.
Turning to the bonding evaluations, Dr. Dyer explained that "the nature
and purpose of bonding assessments vary according to the age of the child."
When a child is young, the evaluator is focused on "the attachment profile" of
the child, because in a child generally younger than six, "attachment is a
critical determinant of how the personality is going to be structured in the
future." Dr. Dyer explained that at that age, "disruptions in the continuity of a
child's care, difficult attachments, unstable attachments, and other types of
ways in which the attachment can go awry have profound effects" on a young
child.
When dealing with thirteen-year-olds, like Samuel and David, "the focus
changes because the child's personality is relatively structured." Dr. Dyer
explained that what an evaluator is assessing with an older child are "more
conventional issues" of whether the child feels secure and the present
placement is meeting his needs. The evaluator is also interested in whether the
child is able to respond behaviorally to the caretaker. The evaluator needs to
understand the child's conscious attitudes toward the parent, and gauge the
strength of the child's attachment to the parent in order to determine "whether
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24
a complete separation from the parent is going to cause the child to experience
some psychological harm."
Dr. Dyer reported that during his evaluation of defendant and his sons,
defendant was preoccupied with giving them "moralistic lectures" that the boys
were "somewhat responsive to." Defendant talked of going to dental school
and learning to make the sort of gold dental grills popular with rappers for
which he could charge $50,000 apiece. Dr. Dyer concluded the boys were
accustomed to these sorts of flights by their father and didn't view them as
genuine plans. Dr. Dyer found the boys enjoyed the contact with their father,
with David being "much more enthusiastic and comfortable" than Samuel.
When the judge noted that the doctor's testimony seemed somewhat
contradictory vis-a-vis Samuel and asked that he expound on his thoughts, Dr.
Dyer explained:
What I was attempting to convey, Your Honor, was
that [Samuel] was very protective of his father during
his interview. He did not want to say anything
negative about his father. He highlighted his father's
protecting him in terms of the asthma . . . , and
rubbing his back, and abruptly confronting individuals
who were smoking around [him]. So, he's trying to
point out all of the good things that his father was
doing for him. At the same time, now we have this
incident where [Samuel] presented in the nurse's
office wheezing with a severe asthma attack and there
was no paperwork on file, and nobody could reach
A-1314-18T3
25
[defendant]. And, so, [Samuel] had to go to the
hospital for treatment. So, [Samuel] has had a lot of
experiences of his father letting him down, but in
terms of telling anyone outside the family that he was
not satisfied with his father, that — that doesn't
happen. He's very protective of his father, Your
Honor.
Regarding his evaluation of Ms. K with the boys. Dr. Dyer reported "the
children were very responsive, emotionally, to Ms. K." Ms. K discussed
things with Samuel and David, and they shared their experiences with her.
The boys taught Ms. K how to play a popular game she wasn't familiar with,
which they all enjoyed. They talked about Ms. K's children and grandson,
Eric, and Samuel addressed Ms. K "as mom, which is consistent with some of
[Dr. Dyer's] observations about how he structured psychologically." Dr. Dyer
testified both boys appeared to have a very good time interacting with Ms. K;
they were well-behaved and responsive to her and she was "entirely
appropriate with them," affectionate and attentive.
Dr. Dyer testified that Samuel and David get along well, and that it is
important that they remain together. Dr. Dyer emphasized that the boys "have
been each other's constant companion through their entire odyssey of
placements, and they have come to rely on each other for support." While
noting they "have the usual sibling rivalry experiences, of course," Dr. Dyer
A-1314-18T3
26
found "they have a great deal of affection toward each other . . . reinforced by
the fact that they have been through so many adverse experiences together."
Asked for his recommendation as to permanency, Dr. Dyer opined in
light of both boys "very good adjustment" to their resource parent and her
commitment to them, the "deficits" in defendant's parenting capacity and the
"poor prognosis" for defendant achieving even minimal capacity in the
reasonably foreseeable future, that the boys be adopted by Ms. K.
Asked whether he believed either David or Samuel would be harmed by
the termination of defendant's parental rights, Dr. Dyer opined that termination
would "basically [be] a net gain for [David] in terms of stability." While
opining that David might "suffer some frustration that he would no longer have
regularly scheduled visits with his father that were enforceable by the court,"
and that all contact would be in Ms. K's control, he did not perceive it to be a
serious problem in light of David's confidence that she would ensure a
continued relationship between him and his father.
As to the potential of harm to Samuel from the termination of
defendant's parental rights, Dr. Dyer said "[t]hat would depend on whether
there was continuing contact [with his father] or not." Dr. Dyer opined that if
defendant's "parental rights were terminated and it was made clear to [Samuel]
A-1314-18T3
27
that he was going to be with his resource mother permanently, then that would
enable him to move on" and "more fully accept what the resource mother has
to offer in terms of nurturance, structure, stability, guidance, positive role
modeling and so forth, and this is if [Samuel] understood that there was no
threat to his continuing contact with his birth father."
Dr. Dyer testified that "[i]f, on the other hand," Ms. K were to decide
that contact with defendant was not in the children's best interests, "then I
think that [Samuel] would have a problem." Dr. Dyer believed in that
circumstance, Samuel "would be preoccupied with this theme of having lost
his entire family now, and that would exacerbate his behavior problems."
Asked for his opinion of the likelihood of Ms. K cutting off the boys'
contact with their father, Dr Dyer testified that based on his interview with her,
his observation of her with the boys, and the case history, he believed there
would be "a low likelihood," that Ms. K would put a halt to the visitation, so
long as defendant "continues to conduct himself in an appropriate manner and
does not appear under the influence of drugs, or under the influence of alcohol,
[and] does not say wildly inappropriate things to the kids." Dr. Dyer explained
that Ms. K "understands what [defendant] means to these children. She
understands the importance of their having a continuing relationship with him.
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28
And, so, absent some egregious threat to their safety I feel certain that Ms. K
would continue to allow contact."
Asked why he considered permanency so important to children, Dr. Dyer
responded:
Permanency is important because there is empirical
evidence that says, very convincingly, that on a broad
range of life adjustment criteria, including school,
success, occupational success, avoidance of contact
with law enforcement, having good mental health,
avoidance of drug and alcohol problems, and just
about anything else that one can imagine in terms of
positive life adjustment, the children who have
permanency fare much better than children who are
continued in the limbo status of resource care, and I
have a reference for that. It's Brodzinski and
Brodzinski, Drs. David and Ann Brodzinski. The title
of the work is “Children's Adjustment to Adoption,”
and I think it was published sometime in the early
'90's. That is a literature review of all the studies
available at that time, that show, very powerfully, that
permanency is enormously helpful to children as
opposed to keeping them in the uncertain status of
foster care.
Asked whether adoption is still the best plan, given the boys were then
fourteen, Dr. Dyer replied:
Adoption is still the best plan because they would
continue to have a stable, nurturing environment that
meets their needs, and contact with a caretaker who is
unequivocally committed to their welfare without any
legal impediment to that situation continuing as would
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29
be the case with continuing foster care or even with
kinship legal guardianship.
Dr. Dyer was asked by the Law Guardian for Samuel if the doctor had
considered kinship legal guardianship. He replied it "would have the
disadvantage of granting a legally enforceable right of visitation to defendant."
The judge broke in: "Oh, really? Is that — is that what your understanding of
what the law is?" That led to the following exchange:
DR. DYER: That's my understanding —
THE COURT: What do you think the law is that
somebody has to show to get visitation or parenting
time or — or custody? What do you think the law is?
DR. DYER: It's my understanding that a kinship legal
guardianship agreement is worked out, it specifies
visitation in the form of visitation, or telephone
contact, and that that is binding, and can only be
modified by going into court.
THE COURT: [To the Law Guardian for Samuel] Are
you happy you asked that question? That's a totally
wrong answer. Totally misinformation about what —
what kinship legal guardianship is. It can be an
agreement like that, but that's not the law.
THE LAW GUARDIAN FOR SAMUEL: Um-hum.
Your Honor — I mean, not Your Honor — Doctor,
would your opinion about adoption versus kinship
legal guardianship be any different if you were told
that a kinship legal guardianship visitation
arrangement would be ordered by the Court, it's not
necessarily something that's developed by the parties,
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30
so the Court can be informed by that, but at the end of
the day it's the Court that decides what the visitation
would be?
THE COURT: All right. Hold on. I'm — I'm not
going to allow that. Doctor, I'm going to explain to
you the fundamental difference between adoption and
kinship legal guardian status.
DR. DYER: Yes, Your Honor.
THE COURT: And I'd like your honest opinion about
it, because that's what counsel for one of the children
wants.[5] The fundamental difference is, if the child is
adopted it's completely up to the control of the
adopting parent as to whether or not the child has any
contact with the father or mother.
DR. DYER: Yes, Your Honor.
THE COURT: Kinship legal guardian status does not
guarantee that the biological parent will have any
contact with the child. The biological parent must
make an application to the Court and be able to prove
to the judge, by clear and convincing evidence, that
either he should have any parenting time at all, or
possibly get custody back. That's the difference.
Now, I'd be happy to hear your thoughts on that.
DR. DYER: Okay. My thoughts about that is that a
relationship, such as the one that Your Honor first
described in which the adoptive parent had complete
control over what would happen with the adopted
5
As we mentioned at the beginning of this opinion, the Law Guardians for
both boys advocated at trial for termination of defendant's parental rights and
their adoption by Ms. K.
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31
child is preferable in this case to anything that would
be less than that.
....
LAW GUARDIAN FOR SAMUEL: Okay. And what
would be the reason for that?
DR. DYER: The reason for that is, as I responded to
your earlier question [defendant] has demonstrated a
well-developed capacity to display emotional
volatility during visits, to behave in a menacing and
hostile manner toward the children, to upset the
children by yelling and cursing at visitation
supervisors, making comments such as "I've been
praying for death ever since you guys were born."
That's as recently as May of this year, and also as
recently as May of this year, making the statement
about — or alluding to [David's] school being reduced
to ashes, which is a veiled threat. [6] So, given those
particulars I would say that the most satisfactory
course for protecting these children would be to place
the complete control over what happens to them in the
hands of the adoptive parent.
LAW GUARDIAN FOR SAMUEL: Do you think
that [Samuel] is psychologically amenable to being
adopted?
DR. DYER: As I testified on direct, I would say that
if [Samuel] did have some ongoing contact with
[defendant] then that would greatly ease his situation.
It would enable him to move on if he were adopted
and he knew that the — the resource parent would
6
Maytidu testified that defendant threated to "reduce the school to ashes"
when David wanted to cut short his weekly visit with his father to attend a
basketball game at school.
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32
provide him with opportunities to see his father,
providing his father behaved appropriately and
substance free. If [Samuel] experienced a total loss of
contact with his father, then I think that that would
have a harmful effect on him, because it would call up
all of these concerns that he has about being totally
disconnected from his family, which is very painful
for him.
LAW GUARDIAN FOR SAMUEL: And you have
confidence in this caregiver in providing ongoing
contact if she had the opportunity to adopt? Because,
as we know in New Jersey, . . . there's no such thing as
an open adoption in New Jersey. You can't — you
can't force a caregiver — an adoptive parent to
continue visits beyond adoption.
DR. DYER: No, I understand that, and as I stated on
direct, I have complete confidence in this particular
resource parent to make good on her promise of
continuing contact between the children and
[defendant] providing that [defendant] did not — did
not pose any sort of threat to the children by irrational
behavior, menacing behavior or appearing under the
influence of some kind of substance or alcohol.
The Law Guardian for David returned to the subject of permanency in
her cross-examination of Dr. Dyer, asking him to expand on the benefits to
"permanency of an adoption" for David and Samuel "at this point." Before the
doctor could answer, the judge broke in again, saying, "All right. I'm going to
need to square away that question because you mixed adoption and
permanence." The Law Guardian rephrased her question, saying:
A-1314-18T3
33
"Considering that the goal is adoption, and that the goal of adoption is
permanency, can you elaborate on how else permanency and the goal of
adoption would benefit" Samuel and David.
Dr. Dyer replied by explaining his view that "[p]ermanency would also
afford these two boys continuing opportunities that are present in the home of
this resource parent that are really unusually good, and would not be present in
many other placements." He concluded his response by stating:
Anything short of adoption, I would say, runs the risk
of, at some point, derailing the process or negatively
influencing it, because of some legally enforceable
visitation or other form of contact, or other
modification that [defendant] may persuade some
judge in the future would be appropriate for — either
or both boys. So, my — my preference would be to
continue them with absolute control of their
environment, and of their welfare placed in the hands
of this — this caretaker whom I view as a mature,
affectionate and appropriate person who is totally
committed to the welfare of both children.
Asked by the law guardian for Samuel to explain the view he expressed
about the importance of adolescents having a permanent and stable home, Dr.
Dyer replied:
Because adolescents are more heavily involved in peer
relationships than are younger children. Peer contact
and being like one's peers, and having the same
advantages as one's peers, all of that plays a part in the
adolescent's sense of self and in their adjustment. For
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34
an adolescent to be moving around from place to
place, living in temporary quarters one month and then
moving somewhere else another month, and then
having a disruption, all of that would severely
interfere with the very thing that is most important to
adolescents in terms of getting along with other people
socially, and that is fitting in with their peers.
Permanency with the current caretaker would
guarantee that to the extent that it is possible for her,
through her directed efforts, that this caretaker would
structure the boys' environments to promote positive
connections with their peers, and would provide them
with whatever they needed in terms of stable home,
clothing, transportation, tutoring, whatever else they
needed to allow them to fit in, and I would like to add
that in this particular case, with two adolescent boys,
who have been through such chaotic conditions in the
past, the tragic loss of their mother when they were a
year old, repeated disruptions in the continuity of their
care, witnessing domestic violence when they were
with their father, that fitting in and feeling normal,
feeling like they fit in is a very important part of their
healing process.
On continued cross-examination of Dr. Dyer, defendant's counsel asked
him "what would be the risk of harm to the boys if they resided [in] the foster
home under a plan of KLG?" The deputy representing the Division objected
on the basis that KLG was "not the plan," as Ms. K had rejected KLG and
wished to adopt the boys. The judge overruled the objection, stating:
It's certainly not the plan, but it's certainly an issue,
and I will ask counsel to brief me, because I think
there's case law that tells me — that, in going through
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35
the four prong test, the fact that there might be an
alternative . . . of KLG should not be considered by
the Court. I think it's a little ambiguous, because still
in Prong IV, I still have to find more harm than good
would come out of the failure to terminate. So, I don't
think there's any secret what our issues are. So, I'm
going to allow the question.
Dr. Dyer responded by stating:
Okay. Here's my concern. Either this court or
perhaps some future court, [if] there's a plan of KLG
may be convinced by [defendant] that a legally
enforceable visitation schedule would be an
appropriate thing for the boys. Now, at the present
time, it's my understanding [defendant] is not
receiving any services. He's not receiving any drug or
alcohol monitoring, no therapy, and in May of this
year he said the egregiously inappropriate things that I
just went over in my testimony, telling the children he
was — praying for death since they were born, and
alluding to [David's] school going into ashes. So, my
concern is that if he had legally enforceable visitation
that there might be a regression to these kinds of
behaviors and, in fact, I would — I would go further
than — than saying, there might be a regression. I
perceive a likelihood of there being a regression to
these kinds of behaviors because the record abounds
with such instances during visitation. And that would
have a negative effect on the boys. Also, it is not
beyond [defendant's] capacity, in my view, to refrain
from doing things to try to undermine the parental
authority of the kinship legal guardian, which would
also be very confusing for the boys and injurious to
them. So, those are the kinds of concerns that I have.
Anything less than adoption would permit these
scenarios that I just went through.
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36
After hearing two days of testimony, the judge put an oral opinion on the
record. The judge had no hesitation in finding the Division established the
first prong of the best interests standard, that the children's "safety, health or
development has been or will continue to be endangered by the parental
relationship," N.J.S.A. 30:4C-15.1(a)(1), by clear and convincing evidence.
Relying on the expert testimony of Dr. Sostre and Dr. Dyer, the judge
found "[t]he evidence is overwhelming that [defendant] has had a significant,
longstanding mental health issue or issues." He noted defendant's recent
hospitalization requiring an adjournment of the trial "triggered by [defendant]
making a serious implied threat regarding, 'going postal,' in his discussion with
the therapeutic visitation coordinator." He credited the testimony of
Cusumano, which he found "objective, and wholly credible," as to defendant's
inability to engage in treatment for any length of time, and of Maytidu, whose
testimony he likewise found "credible, helpful and insightful," as to the effect
defendant's often angry and aggressive verbal assaults had on the children's
emotional and psychological wellbeing.
In making his findings on the first prong, the judge also relied on Dr.
Dyer's opinion that defendant had a personality disorder, manifesting itself in
his extreme suspicion of others and "convoluted thinking," and that he misused
A-1314-18T3
37
alcohol and marijuana. The judge found Dr. Dyer's testimony regarding his
evaluations and his opinion that defendant could not safely parent his children
"credible and helpful to the court" in its evaluation of defendant's mental
health. The judge concluded the uncontroverted evidence "certainly
demonstrates that the children's safety, health or development will continue to
be endangered by the parental relationship insofar as it means that the children
would live or be parented solely by [defendant]." The judge found "[t]he
evidence is clear and convincing that he will not, in any foreseeable future, be
able to have physical custody of his two sons."
Although our Supreme Court has noted that the first and second prongs
"are related to one another, and evidence that supports one informs and may
support the other," In re Guardianship of DMH, 161 N.J. 365, 379 (1999), the
trial judge determined "to skip over" analysis of the second prong and proceed
to analyze the proofs on the third prong, that is whether the "[t]he Division has
made reasonable efforts to provide services to help the parent correct the
circumstances which led to the child's placement outside the home and the
court has considered alternatives to termination of parental rights," N.J.S.A.
30:4C-15.1(a)(3).
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38
As to the third prong, the judge deemed the evidence "overwhelming"
that the Division had "made more than reasonable efforts to provide services to
help [defendant] correct the circumstances which led to the children 's
placement outside of his home." The judge again relied on the testimony of
Leonard Cusumano,7 whom he found "demonstrated extreme dedication to the
mission of the Division," who "very credibly documented over a course of
many years efforts to provide for and engage [defendant] in services" to no
real avail. As to alternatives to termination, the judge concluded that because
N.J. Div. of Youth and Family Servs. v. R.G., 217 N.J. 527, 558 (2014), made
clear he could not consider KLG "as an alternative," here, he found the
Division had "met its burden of proof by clear and convincing evidence" on
the first and third prongs.
The judge next turned to consider the second and fourth prongs. As to
the second prong, whether "[t]he 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
7
The judge said "[i]t would be difficult to imagine a division worker who
more thoroughly understood and implemented the legal mandates that the
Division is required to adhere to in these matters of abuse or neglect to
children" than Mr. Cusumano. Having reviewed the record, we agree with the
judge's assessment.
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39
harm," N.J.S.A. 30:4C-15.1(a)(2), the judge found "[t]he evidence is
overwhelming that [defendant] has been unable to eliminate the harm facing
the children, and is unable to provide a safe and stable home" for them. Based
on "the length of time that [defendant] has been unable to engage consistently
in mental health treatment," the judge found, by clear and convincing
evidence, that it was "extremely unlikely that [defendant] will ever be able to
successfully and safely parent his children."
The judge also found, however, that "there is a second aspect of Prong 2
that must be met. That is the delay of permanent placement will add to the
harm." Because the court's findings on this point are critical to the issues on
appeal, we quote them at length.
Now, it is clear from the evidence that these two
children are happy to be in the home that they have
had with Ms. K. Not only are they happy, but the
testimony is that they are doing much better with the
stable and loving life that they have had with her since
2015. Ms. K is one of those . . . extraordinary and
wonderful humans that takes children in from the
Division without knowing how it's going to turn out.
It is hard to imagine a teenage placement that could
have worked out better for these two teenage boys. I
certainly find that under no circumstances should
these children be removed from Ms. K's home. This is
proven by clear and convincing evidence.
Will the delay of a designation of a permanent
placement add to the harm of these two children who
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40
are teenagers? These children should know they are
not going anywhere other than where they are right
now. In that sense, it is clearly and convincingly
demonstrated that the division has proven Prong 2.
However, given that they are not going to be moved
under the authority of this Court, and it is proven by
clear and convincing evidence that the father will not
be able to reunify with his children, there is a question
in the court's mind regarding these teenagers, just
three and a half years away from 18 years — 18 year
old adulthood are in need of a permanent designation
at this moment given the bond that they have with
their father. This analysis flows over to the
considerations of the fourth prong of the statute.
Thus, the judge proceeded to resolve the question presented by the fourth
prong, whether "[t]ermination of parental rights will not do more harm than
good," N.J.S.A. 30:4C-15.1(a)(4), by considering whether the boys "are in
need of a permanent designation," at fourteen-and-a-half, "given the bond they
have with their father."
Although recognizing that the facts in R.G. were not analogous to those
in the case before the court — that case involving a father incarcerated when
his daughter was six months old, to whom the Division had not offered
services during his five-year prison term, who was defending against the
Division's efforts to terminate his parental rights as he was re-entering society
— the judge nevertheless looked to that case for guidance here. He found two
points particularly instructive. First, the judge noted the Supreme Court's
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41
admonition there that "[t]erminations should be granted sparingly and with
great caution because they irretrievably impair imperative constitutionally -
protected liberty interests and scores of centuries of societal family
constructs." R.G., 217 N.J. at 553. The judge noted that "as it happens, family
constructs in our nation, as part of its history, were deliberately and
systematically destroyed for a certain segment of our population. [8] And, so,
we must be very careful when we're interfering with family constructs. And I
emphasize centuries of societal family constructs."
Notwithstanding his acknowledgment of the Court's emphatic statement
in R.G. that "a child's need for permanency is an extremely important
consideration" for the fourth prong, id. at 559, the judge chose to focus instead
on a statement the Court made criticizing our finding on the second prong. We
had concluded that the defendant's approval of his daughter's placement with
her grandmother while he was in prison, and his unwillingness to immediately
seek custody of her on his release, established he was unable to abate the harm
his incarceration had caused his daughter. Id. at 560-61. The Court found
"that interpretation suggests that a parent, by virtue of his unwillingness to
8
We assume the judge was referring to our country's mistreatment of blacks
and historical efforts to undermine and destabilize black families. Defendant
and his sons are black, as is their resource parent.
A-1314-18T3
42
seek full custody of his child, relinquishes the other parental rights protected
by both the United States and New Jersey Constitutions." Id. at 561. The
Court rejected that notion as inconsistent with common experience. Adverting
to the "visitation rights . . . almost invariably granted to the non-custodial
parent in a divorce," the Court observed it was "not uncommon . . . for a parent
to relinquish custody of his or her children but maintain other parental rights."
Ibid. (quoting V.C. v. M.J.B., 163 N.J. 200, 228 (2000)).
The trial judge interpreted the Court's remark to mean that "the inability
of a parent to actually take a child into his or her custody is not the dispositive
issue for Prong 4." The trial judge concluded the "[c]ritical facts were that the
child in R.G. displayed an affection for[,] an[d] emotional bond with her
father," and "the father['s] testimony that immediately preceding the hearing,
[the defendant's daughter] told [the defendant] that she loved him, and looked
forward to spending time with him in the future." With that guide, the judge
proceeded to evaluate whether termination of defendant's parental rights would
do more harm than good by considering the bond David and Samuel have with
their father.
Turning to Dr. Dyer's testimony, the only expert to testify about
defendant's relationship with his sons in the case, the judge again noted his
A-1314-18T3
43
acceptance of the expert's opinion that defendant "would not have the capacity
to safely parent his children by having custody of them." The judge also
credited the expert's assessment of both boys and his opinions as to the
connection they had with their father and the one they had developed with Ms.
K in the more than three years she'd cared for them. The judge, however,
rejected Dr. Dyer's opinion that termination of defendant's parental rights and
adoption by Ms. K would be in the children's best interests, deeming it neither
persuasive nor credible. Indeed, the judge deemed Dr. Dyer's testimony that
termination would not do more harm than good, a "net opinion." Although
stating that "many of [Dr. Dyer's] observations were credible," the judge found
the psychologist's "bottom line opinions with respect to the absolute need to
proceed to adoption do not seem to fit the facts to which he . . . testified,"
specifically, the existence of the bond "the boys have with their father."
The judge was particularly troubled that "Dr. Dyer did not seem to
understand the fundamental difference between kinship legal guardian status
and adoption," although stating he was "not making part of my ruling that the
alternative kinship legal guardianship to be put into place." The judge noted in
that regard that "[w]hatever happens after [his] decision" to dismiss the
guardianship complaint "is undetermined."
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44
The judge noted that Dr. Dyer was the Division's expert in N.J. Div. of
Youth & Family Servs. v. E.P., 196 N.J. 88, 98 (2008), in which the Supreme
Court reversed both the trial court's and this court's finding that termination
was warranted under the fourth prong in the case of a twelve-year-old who had
cycled through seven foster homes with no real prospect of "permanent
placement with an adoptive family" and whose "only enduring emotional and
loving bond" was with her mother. The judge concluded Dr. Dyer is "very
adoption biased as indicated in the E.P. case and is willing to put aside other
factors that I believe are present in this case."
Discussing those factors, the judge noted the testimony of both the
adoption worker, Cusumano, and the mental health clinician, who oversaw
defendant's therapeutic visitation, Maytidu, that defendant rarely missed a visit
with his sons. And although defendant was "sometimes inappropriate," the
judge noted, "[o]f course, he's a severely mentally ill person, whose not getting
treatment."
The judge also took into account what he characterized as the boys'
"ambivalence and uncertainty" about adoption. He found their reaction
"understandable. They are teenagers. They are in a loving home, yet they love
their father." The judge likewise reflected that defendant grasped that he could
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45
not provide a home for his sons but believed "breaking the family bond should
not happen." While agreeing with Dr. Dyer's assessment that defendant would
likely never have the capacity to safely parent his children, the judge found
"given the age of the children, and the relationship with their dad, reunification
and adoption are not the only things that can happen."
Considering those factors, the judge concluded "the children have a
caring relationship with their significantly mentally ill father. They appear to
care about him, and he cares about them." In light of that relationship, the
judge deemed himself "not persuaded" that the Division had clearly and
convincingly established that termination of defendant's parental rights would
not do more harm than good. The court declared that
These two boys are not going anywhere, other than
where they are now for as long — for the long and
foreseeable future. They are doing very well where
they are, under the care of a perfect, and I emphasize
from my point of view, perfect resource parent, who
would be happy to adopt them. She will never
abandon them regardless of the court's decision.
She testified she wants to care for these children
forever onward. That relationship should definitely
continue in the best interests of the children. At the
same time, completely severing the legal relationship
between [defendant] and his two children carries with
it significant danger and harm.
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A fair argument is made that termination will not do
more harm than good. I am not convinced of that
based upon the credibility of the witnesses and the
overall best interests of these two children. They are
just under 14 and a half years old. They lost their
mother very early in their lives. They continue to
have a significant connection with their father. They
know he will not be able to take them into any home,
or provide for them. Not too many years from now, at
the age of 18, these two boys will be able to declare,
on their own, whether they want to be legally, fully,
and completely adopted by Ms. K. The evidence
demonstrates that they will remain in that home
almost assuredly until they reach the age of 18. Ms. K
certainly welcomes that up to 18 and beyond,
according to her testimony, and I believe her. She
wants those two boys to go to college.
Declaring that he saw "potential harm coming to these twin boys if their
father's rights are fully and finally terminated" by "cut[ing] a cord that the
children have had with their biological family," the judge dismissed the
guardianship complaint. This appeal followed.
Our standard of review is well established. We ordinarily accord
deference to the Family Part based on its special jurisdiction and expertise.
Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We defer to the court's factual
findings if supported by adequate, substantial and credible evidence in the
record. R.G., 217 N.J. at 552. The scope of our review, however, is expanded
"where the focus of the dispute is . . . alleged error in the trial judge's
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47
evaluation of the underlying facts and the implications to be drawn therefrom."
Ibid. (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App.
Div. 1993)). Our review of questions of law is, of course, de novo. Nicholas
v. Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995).
Although we are mindful that a decision that the Division did not prove
its case is entitled to enhanced deference because the Division is always free to
file a new action seeking to terminate the parents' rights, R.G., 217 N.J. at 553-
54, the analytical errors here, including the trial court's conclusion that long-
term placement with a resource family remains an appropriate alternative to
termination, notwithstanding twenty years of explicit case law to the contrary,
see In re Guardianship of K.H.O., 161 N.J. 337, 360 (1999), and the
intolerably long delay in providing Samuel and David the permanency they are
entitled to under our law, compel vacating the decision and remanding for
further expedited proceedings.
We begin our analysis with a fundamental principle the trial court
appears to have lost sight of: "[p]arental rights, though fundamentally
important, are not absolute." Id. at 347. A parent's constitutional right to raise
his or her child is tempered by the State's parens patriae obligation to protect
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48
that child's welfare. Ibid. How a court balances those two conflicting ideas is
by faithfully applying the statutory best interests of the child standard to the
evidence presented at a guardianship trial. Ibid. Termination of a parent's
rights to his or her child may be ordered only upon the State's clear and
convincing proof of each of the following four prongs of the best interests
standard:
(1) The child's safety, health or development has been
or will continue to be endangered by the parental
relationship;
(2) The parent is unwilling or unable to eliminate the
harm facing the child or is unable or unwilling to
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm.
Such harm may include evidence that separating the
child from his resource family parents would cause
serious and enduring emotional or psychological harm
to the child;
(3) The division has made reasonable efforts to
provide services to help the parent correct the
circumstances which led to the child's placement
outside the home and the court has considered
alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more
harm than good.
[N.J.S.A. 30:4C-15.1(a).]
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The four prongs of the best interests standard "are not discrete and
separate; they relate to and overlap with one another to provide a
comprehensive standard that identifies a child's best interests." N.J. Div. of
Child Prot. & Permanency v. R.L.M., 236 N.J. 123, 145 (2018) (quoting
K.H.O., 161 N.J. at 348). As the Supreme Court has often reiterated, "[t]he
considerations involved in determinations of parental fitness are 'extremely
fact sensitive' and require particularized evidence that address the specific
circumstances in the given case." K.H.O., 161 N.J. at 348.
The trial court's analytic errors in this case flowed, in part, from the
judge looking for guidance in this 'extremely fact sensitive' decision of
whether to terminate defendant's parental rights to a case, R.G., which is
wholly dissimilar from the one before us. As we mentioned above, the
defendant in R.G. was sent to prison for five years when his daughter was six
months old. 217 N.J. at 536. While he was incarcerated, the child's mother's
abuse of alcohol rendered her unable to care for their daughter. Ibid. The
defendant consented to the child's placement with her maternal grandmother.
Id. at 536-37. The Division's efforts at reunifying the child with her mother
were unsuccessful, and the defendant being unavailable to assume her care, the
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Division filed a guardianship action to terminate the rights of both parents to
be followed by the child's adoption by her grandmother. Id. at 537.
The case came to trial just as the defendant was leaving prison. Id. at
539. The defendant acknowledged his situation made it impossible for him to
assume custody of his daughter immediately but opposed termination because
he wanted "contact and visitation with [his daughter] in order to foster and
enhance their present relationship." Id. at 538.
In R.G., the Division claimed the defendant's incarceration resulted in
the abandonment of his daughter. Id. at 536-37. The Division did not provide
the defendant with services, and he had no personal contact with his daughter
while in prison as he did not want her visiting him there given her young age.
Ibid. The defendant's psychological evaluation revealed no pathology, and the
defendant's crimes were not of the nature that might suggest concern for
parenting. Id. at 536, 539. There was no bonding evaluation conducted of him
and his daughter, as the years he spent away from her in prison would have
made the presence of any bond unlikely. Id. at 540.
In short, R.G. is completely dissimilar from this matter, and the trial
court's effort to force an analogy based on defendant's inability to assume
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physical custody of his sons, for very different reasons than the defendant in
R.G. could not assume custody of his daughter, led the court into error.
Specifically, the trial court looked to R.G. in assessing the second prong,
whether "the parent is unwilling or unable to eliminate the harm or . . . provide
a safe and stable home for the child and the delay of permanent placement will
add to the harm," N.J.S.A. 30:4C-15.1(a)(2). Although finding "it extremely
unlikely that [defendant] will ever be able to successfully and safely parent his
children," the judge found "there is a second aspect of prong 2 that must be
met," that "the delay of permanent placement will add to the harm." That was
clear error here.
As the Court explained in K.H.O., the second prong of the best interests
statutory standard "relates to parental unfitness," which the Division can
establish in more than one way. 161 N.J. at 352. The Division can
"demonstrate[] that the parent is 'unwilling or unable to eliminate the harm'
that has endangered the child's health and development," N.J.S.A. 30:4C-
15.1(a)(2), or, alternatively, that "the parent has failed to provide a 'safe and
stable home for the child' and a 'delay in permanent placement' will further
harm the child." K.H.O., 161 N.J. at 352. The Division need prove only one
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52
of those alternatives, not both, to establish the second prong of the statutory
standard.
The first and second prongs are inextricably intertwined. The test of the
second prong "is aimed at determining whether the parent has cured and
overcome the initial harm that endangered the health, safety, or welfare of the
child, and is able to continue a parental relationship without recurrent harm to
the child." Id. at 348. In order to make that determination, of course, one has
to be clear about the harm the parent has to cure and overcome. Id. at 350-53
(explaining in the case of an infant born addicted to drugs, the proofs on the
second prong "may be met by indications of parental dereliction and
irresponsibility," including the parent's continued or recurrent drug abuse,
inability to provide a stable home, the withholding of parental attention , and
the diversion of family resources to support a drug habit, resulting in neglect
and lack of nurture).
Here, there is no dispute that the judge found the Division had carried its
burden of establishing the first prong, that the boys' "safety, health or
development has been or will continue to be endangered by the parental
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53
relationship," as a result of defendant's "significant, longstanding mental
health issue or issues." 9
Although also finding "[t]he evidence is clear and convincing that
[defendant] will not, in any foreseeable future, be able to have physical
custody of his two sons," because of those longstanding mental health issues,
the judge did not recognize that finding conclusively established the second
prong. Instead, as we previously noted, the judge erroneously found — likely
because of his having latched onto R.G. as the case having the most to offer
here to guide his analysis — that the Division needed to also prove that
delaying permanent placement of David and Samuel will add to the harm.
But the Division in R.G. moved to terminate the defendant's parental
rights based on his inability to provide a safe and stable home for his daughter
because of his incarceration, not because he lacked capacity to care for his
child, as defendant here. R.G., 217 N.J. at 542 (noting "the trial court
considered whether appellant's incarceration constituted abandonment . . .
because abandonment was the only harm that the Division's complaint alleged
against appellant"). Because the identified harm in R.G. was abandonment,
9
Although the judge also found defendant had been unable to provide his
children a safe and stable home, defendant's "severe mental illness" was
obviously the driver in all his failings as a parent.
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54
not incapacity, the second prong inquiry in R.G. necessitated the further
consideration of whether a "delay in permanent placement" will further harm
the child. K.H.O., 161 N.J. at 352. That inquiry is not relevant when the harm
to the child follows from the parent's incapacity to safely parent due to severe
mental illness the parent has never been willing to treat. See In re
Guardianship of A.A.M., 268 N.J. Super. 533, 545 (App. Div. 1993); see also
N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 436 (App.
Div. 2001). Additional time will not cure the problem.
This second prong error infected the judge's analysis of the proofs under
the fourth prong, whether termination will not do more harm than good.
N.J.S.A. 30:4C-15.1(a)(4). As the Supreme Court has instructed, when a child
is in the care of a resource parent, the trial judge "must inquire into the child's
relationship both with her biological parents and her foster parents." K.H.O.,
161 N.J. at 355. "The question to be addressed under [the fourth] prong is
whether, after considering and balancing the two relationships, the child will
suffer a greater harm from the termination of ties with her natural parents than
from the permanent disruption of her relationship with her foster parents."
Ibid.; see also Fall & Romanowski, N.J. Family Law, Child Custody,
Protection & Support, § 13:5-5 (2020) ("Harm under the fourth prong is
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55
relative, requiring the court to compare the potential harm resulting from an
involuntary termination of parental rights, which has as its goal permanency
and stability for the child, to the potential harm if parental rights are not
terminated and the child is not afforded the opportunity for permanency and
stability.").
Instead of undertaking that inquiry, as required under the statutory
standard and the case law interpreting it, the judge considered whether the
children, at fourteen-and-a-half, needed the permanency that adoption by Ms.
K would provide them. Overlooking a legion of published cases stressing
"New Jersey's strong public policy in favor of permanency," K.H.O. 161 N.J.
at 357, and "the paramount need . . . children have for permanent and defined
parent-child relationships," In re Guardianship of J.C., 129 N.J. 1, 26 (1992),
the trial judge put the goal of permanency on one side of the scale and
improperly "balanced" that against the children's biological tie to their father.
Thus, instead of weighing whether terminating defendant's parental rights to
his sons would do more harm to the boys than permitting their adoption by Ms.
K, the trial judge decided the children's biological bond to their father
outweighed their need for adoption and permanency, and he could continue
them in the legal limbo of long term foster care until they turn eighteen and
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56
can decide for themselves whether "they want to be legally, fully, and
completely adopted by Ms. K."
That also was clear error. Our courts have no authority to eschew the
Legislature's goal of providing children permanency, either with their natural
parents or adoptive parents. With the repeal of The Long Term Foster Care
Act, N.J.S.A. 30:4C-26.13, in 2004, L. 2004, c.130, §128, long-term placement
is no longer an appropriate alternative permanency plan in this State. Fall &
Romanowski, § 32:3-4. Even before the repeal of the Act, the Supreme Court
instructed in K.H.O. that "[l]ong-term foster care is the exception to the
general rule favoring adoption, . . . available under only very limited
circumstances," and certainly not where, as here, in the trial judge's words, a
"perfect resource parent" stood ready to adopt. K.H.O. 161 N.J. at 360-61 and
n.8.
K.H.O. involved a mother "still capable of maintaining a limited benign
relationship with her child," but unable, due to long term drug addiction, to
"strengthen or extend that bond and function as a parent in providing for
K.H.O.'s physical and emotional needs and assuring her normal development."
Id. at 356. Applying the four prong statutory standard, the trial court
terminated parental rights. Id. at 345-46. We reversed. In re Guardianship of
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57
K.H.O. 308 N.J. Super. 432, 456-58 (App. Div. 1998). Because we were not
convinced the record clearly and convincingly established that severing the
child's bond with her biological parent would not harm her, and we doubted
that the resource parents would "disappear" if denied the right to adopt the
child, we reinstated the mother's parental rights but maintained the status quo
by continuing custody in the Division and placement with the resource parents.
Ibid. In the event the Division were to continue to pursue guardianship, we
directed that "expert evidence should be provided that forms a basis for the
trial judge to cogently consider the viability of long-term foster care with
continuing biological family visitations as an appropriate alternative to
termination and adoption on the one hand, and reunification on the other." Id.
at 458.
In a landmark decision, regularly cited more than twenty years later, the
Supreme Court reversed. K.H.O. 161 N.J. at 363. The Court held we
"incorrectly treated long-term foster care on a par with the creation of
permanent lasting ties with either the natural parents or the adoptive parents ,"
which did "not accord with the best interests of the child" as reflected in State
law and public policy. Id. at 360. The Court recognized that "[t]he risk to
children stemming from the deprivation of the custody of their natural parent is
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one that inheres in the termination of parental rights and is based on the
paramount need the children have for permanent and defined parent -child
relationships." Id. at 355 (quoting J.C., 129 N.J. at 26).
Given the Legislature's clear policy choice of "favoring reunification or
adoption over long-term foster care," and acknowledging there "can be no
genuine replacement or substitute for the deprivation of nurture by the natural
parent," the Court in K.H.O. held "the fourth prong of the best interests
standard cannot require a showing that no harm will befall the child as a result
of the severing of biological ties." Id. at 355, 360. Instead, "[t]he question to
be addressed under that prong is whether, after considering and balancing the
two relationships, the child will suffer a greater harm from the termination of
ties with her natural parents than from the permanent disruption of her
relationship with her foster parents." Id. at 355.
Neither trial courts nor appellate courts are free to duck the painful
choices presented in those cases where a parent's inability "to transfer affection
or care to their children may be attributed to the parents' being short-changed
by either nature or society." Id. at 357 (quoting N.J. Div. of Youth & Family
Servs. v. A.W., 103 N.J. 591, 615 (1986)). "As tragic as the consequences to
the parents of the loss of their children may be," the courts of this State are not
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59
free to "ignore evidence of serious injury. It is inappropriate to disregard a
clear and essentially undisputed showing of such injury and its probable
consequences because society may have been unfair to the parents." A.W.,
103 N.J. at 614.
This record here contains that "essentially undisputed showing of such
injury and its probable consequences" to Samuel and David. In addition to the
analytic errors caused by trying to shoehorn the facts of this case into R.G., the
trial court mistakenly avoided confronting the injury to these boys and its
probable consequences through its evidentiary error of dismissing Dr. Dyer's
testimony as a net opinion.
The net opinion rule, of course, "mandates that experts 'be able to
identify the factual bases for their conclusions, explain their methodology, and
demonstrate that both the factual bases and the methodology are reliable. '"
Townsend v. Pierre, 221 N.J. 36, 55 (2015) (quoting Landrigan v. Celotex
Corp., 127 N.J. 404, 417 (1992)). In the usual shorthand, it requires an expert
to "'give the why and wherefore' that supports the opinion, 'rather than a mere
conclusion.'" Id. at 54 (quoting Borough of Saddle River v. 66 E. Allendale,
LLC, 216 N.J. 115, 144 (2013)).
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Dr. Dyer's opinions in this matter, quoted extensively above, are
obviously not excludable net opinions under N.J.R.E. 703. Dr. Dyer is a well-
qualified expert whose opinions have been cited in a dozen published cases
involving the termination of parental rights. He conducted psychological
assessments of defendant and his sons as well as the only bonding evaluations
in the case. He explained his methods and the purpose of each inquiry, noting
the differences in a bonding evaluation of a caretaker and a young child from
one involving an adolescent. The facts Dr. Dyer relied on in coming to his
conclusions were the same ones the trial judge relied on in his opinion.
Indeed, the judge accepted Dr. Dyer's opinion that defendant lacked the
capacity to parent his sons either now or, likely ever, as well as his
assessments of the boys and the connections they have, both to their father and
Ms. K.
It wasn't the "why and wherefores" of Dr. Dyer's opinion that troubled
the trial judge, it was Dr. Dyer's conclusion that termination of defendant's
parental rights to David and Samuel and their adoption by Ms. K was in their
best interests. But that conclusion was thoroughly explained on the record,
including with reference to the professional literature supporting the doctor's
view that children fare better by being adopted by a caring resource parent
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than remaining in long term foster care, and why he believed these boys would
fare better by being adopted by Ms. K, even given their ages, than remaining
in her care in their indeterminate status. A trial judge presiding over a bench
trial is, of course, free to reject the opinion of an expert. Brown v. Brown, 348
N.J. Super. 466, 478 (App. Div. 2002). The judge is not free, however, to
label it a net opinion as the means of excluding it so as to avoid confronting its
content.
The judge's ostensible reason for rejecting Dr. Dyer's "bottom line
opinions with respect to the absolute need to proceed to adoption," was
because the judge found him "frankly . . . very adoption biased as indicated in
the E.P. case." E.P. was decided over ten years ago, in 2008. It represents a
particularly extreme example of the difficult choices facing courts and experts
where a parent has exposed a child to continuing harm through abuse or
neglect, has been unable to remediate the danger, making reunification
unlikely, but there is no permanent placement with a loving family awaiting
the child on the other side. E.P., 196 N.J. at 108. Dr. Dyer testified for the
Division in that case, opining that a "failed reunification" with the child's drug-
addicted mother was not in the emotionally fragile thirteen-year-old's best
interests, that the child had a closing window of opportunity to become
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attached to another caretaker, and that a permanent caretaker was especially
important in that case because of the child's need for "a great deal of structure,
supervision, therapeutic attention, . . . medication monitoring by a psychiatrist,
and also special education geared towards her emotional and behavioral
problems." Id. at 98.
The Supreme Court did not find Dr. Dyer's opinion "adoption biased," it
simply disagreed with his view, as well as that of the trial court and this court,
that termination was in the child's best interests in light of her emotional
attachment to her mother and the remote chance of her adoption. Id. at 109.
There are two things to note about the trial court's "bias" finding. First, the
judge did not raise E.P. with Dr. Dyer, and none of the lawyers brought it up.
Rejecting an expert's view as "biased" based on an opinion he offered in a
different case a decade earlier, without even asking him about it, is plainly
unsound and simply unfair to the witness and the party presenting him. For all
anyone knows, the witness could have changed his mind on the issue in the
ensuing decade. More to the point here, however, is that the "bias" in favor of
permanency the trial judge criticized in Dr. Dyer's testimony is a bias
incorporated in our law and public policy. See id. at 110-11 (noting "[the
Supreme] Court, the State Legislature, and even the United States Congress,
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have emphasized that permanency must be the Division's goal") (footnote
omitted).
That brings us to the court's troubling comments about KLG in this case.
Having reviewed the entire record, it is obvious that there was a veiled, and
sometimes not so veiled, frustration among some of the participants in this trial
with Ms. K's change of heart on KLG. While we can understand the
frustration of a lawyer who cannot secure his client's desired outcome in a
matter, defense counsel's statement on the record, which culminated in the
comment that if the resource parent "doesn't want to do KLG anymore," then
she should "return these children," and "[w]e'll find somebody who probably
wants the best of both worlds" for them, obviously crossed the line. Counsel
should have been immediately admonished by the trial judge that his
comments were wholly inappropriate. The judge, instead, sympathized with
the statements, saying, there was "a part of [him] that under[stood] precisely
what [counsel] [was] saying." The judge then went on to say he found the
difference between KLG and adoption "almost meaningless" at the boys' ages
and concluded by confessing he didn't "get it."
Those comments by the judge, and his decision to permit defendant to
question Dr. Dyer about the risk of harm to the boys under a KLG, overruling
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64
the Division's objection that KLG was "not the plan," with the statement that
"It's certainly not the plan, but it's certainly an issue," because the judge "still
[had] to find more harm than good would come out of the failure to terminate,"
give his later exchange with Dr. Dyer about the difference between adoption
and KLG, and the judge's reflection on it in the course of delivering his
opinion from the bench, a more disturbing cast.
KLG was not an issue in this case, although it came up again and again.
Unlike the trial judge, we do not find the doctor's explanation of why he
believed KLG to be a less desirable option here than adoption, because it
"would have the disadvantage of granting a legally enforceable right of
visitation to defendant," a gross misunderstanding of the law. No less an
authority than our Supreme Court has stated that in a KLG, "the parent remains
entitled to visitation." R.G., 217 N.J. at 558 (quoting N.J. Div. of Youth &
Family Servs. v. S.V., 362 N.J. Super. 76, 87 (App. Div. 2003)).
We find the remarks the judge made in the course of his ruling about his
exchange with Dr. Dyer particularly troubling. In expressing surprise about
Dr. Dyer not "seem[ing] to understand the fundamental difference between
kinship legal guardian status and adoption," the judge said he was "not making
part of my ruling that the alternative kinship legal guardianship be put into
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65
place. Whatever happens after my decision is undetermined" (emphasis
supplied).
Ms. K, the resource parent here, is not related to defendant or his sons.
She testified she was 71 years old at the time of trial and had never
volunteered to serve as a resource parent before. Samuel and David were the
first children she'd ever fostered. Although she has family nearby, she lives
alone with the boys. It is undisputed that she has provided them a safe and
loving home, effecting a remarkable change in both their lives. It is hard to
imagine a more successful placement for these teenaged boys.
Ms. K changed her mind about KLG after defendant appeared early one
morning at her house, drunk, demanding to see his sons. For much of the time
during this litigation, defendant was only permitted therapeutic supervised
visitation with his sons. After his comments about "going postal" to Maytidu,
the licensed mental health clinician supervising his visits, her employer,
Cooperative Counseling Services, refused to continue to supervise them
without security, requiring they be moved to the Division's offices. Although
both Maytidu and Cusumano testified the visits often went well, the record is
replete with reports of defendant's aggressive and threatening conduct toward
the boys on multiple occasions during those supervised visits. The trial judge
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66
acknowledged defendant was sometimes inappropriate, noting "[o]f course,
he's a severely mentally ill person, who's not getting treatment."
There are certainly reasons that might militate against an unrelated, or
indeed, any resource parent from entering into a KLG on this record. KLG, of
course, "is not intended as an equally available alternative to termination ,"
R.G. 217 N.J. at 558 (quoting S.V., 362 N.J. Super. at 88), and "when the
permanency provided by adoption is available, [KLG] cannot be used as a
defense to termination of parental rights." Id. at 558-59 (quoting N.J. Div. of
Youth & Family Servs. v. P.P., 180 N.J. 494, 513 (2004)). As acknowledged
by the trial judge, KLG was not appropriate here as an alternative to
termination under the third prong as Ms. K wants to adopt Samuel and David.
It was, therefore, an inappropriate consideration under the fourth prong in
determining whether termination would do more harm than good. Obviously,
applying pressure on a resource parent to effect a KLG, otherwise unavailable
because the resource parent would prefer the permanency of adoption, would
be wholly inappropriate under any circumstances.
Instead of erroneously considering an option statutorily unavailable, the
trial judge should have focused on the resource parent's "willingness to permit
continued visitation" between the boys and their father, which Dr. Dyer
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67
deemed important to both, and critical to Samuel's wellbeing, as an integral
part of its analysis under the fourth prong as expressly permitted by the
Supreme Court in N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,
288 (2007); see also In re Guardianship of J.N.H., 182 N.J. 29, 31 (2004).
We think it plain that the trial judge's analytical errors in assessing the
second and fourth prongs, his erroneous ruling rejecting Dr. Dyer 's testimony
about the best interests of Samuel and David as a net opinion, thus avoiding
the evidence in the record about the harm their father's untreated mental illness
continues to pose to them and its probable consequences for the future, and the
judge's mistaken belief that long term foster care was an appropriate
alternative permanency plan for these boys compel vacating the decision
dismissing the guardianship complaint.
We have considered a further direction to the trial court to enter a
judgement terminating defendant's parental rights, as the Division and David's
Law Guardian urge us to do. There is support for that in this record, which, as
we have noted, is almost entirely undisputed. Neither defendant nor the Law
Guardians put in any evidence. Further, there is no question but that the
Division has proved by clear and convincing evidence the first three prongs of
the best interests standard. The judge found the evidence "overwhelming" that
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defendant's longstanding, severe mental health issues have, and will continue,
to endanger the children's safety, health or development; that defendant has
been unable to eliminate the harm facing the children, and will likely never be
able to safely parent them; that the Division "made more than reasonable
efforts to provide services to defendant" to help him correct the problems that
led to the boys' placement and that there are no alternatives to termination.
We agree.
That leaves only the fourth prong: whether termination would not do
more harm than good. In our view, this would not have been a difficult call on
this record. Considering that David's position for well over two years has been
that he is desperate to have the Division out of their lives and wants to be
adopted by Ms. K so he could have a "normal" life, coupled with Dr. Dyer's
opinion that termination would "basically [be] a net gain for [David] in terms
of stability," it is difficult to see how one could find that termination would do
more harm than good as to David, especially as Ms. K has committed to David
that she will assist him in maintaining his relationship with his father.
The issues as to Samuel are more complex. Samuel has sometimes
expressed the desire to be adopted by Ms. K, the position he took at trial, and
at other times to remain in her care but not be adopted by her, thus maintaining
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his father's parental rights, the position he takes on appeal. The testimony of
Maytidu and Cusumano reflect that Samuel is the more sensitive of the twins ,
and that his father appears to have higher expectations for his brother. Further,
defendant often inappropriately directed his anger and frustration for
upheavals and setbacks in his own life at Samuel. Both Maytidu and Dr. Dyer
testified that Samuel has been made to feel responsible for his father, in a
reversal of the usual roles.
Dr. Dyer opined that whether Samuel would suffer any harm from the
termination of parental rights would depend on whether he was afforded
contact with his father. Significantly, Dr. Dyer opined that if defendant's
"parental rights were terminated and it was made clear to [Samuel] that he was
going to be with his resource mother permanently, then that would enable him
to move on" and "more fully accept what the resource mother has to offer i n
terms of nurturance, structure, stability, guidance, [and] positive role
modeling. If, on the other hand," Samuel's contact with his father was ended,
Dr. Dyer believed Samuel could likely "be preoccupied with this theme of
having lost his entire family now, and that would exacerbate his behavior
problems."
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Dr. Dyer stressed that both these adolescent boys had not only suffered
the early loss of their mother, but also carry with them the experiences of the
chaotic conditions of their childhood, including repeated disruptions in the
continuity of their care. He offered that for them, "feeling like they fit in is a
very important part of their healing process." Adoption by Ms. K offered them
the best chance of moving past those experiences and not having them burden
and dictate the rest of their lives. As the Supreme Court observed in E.P.,
"[w]hen a parent has exposed a child to continuing harm through abuse or
neglect," and been "unable to remediate the danger," and the child has found a
"nurturing and safe home" with resource parents committed to adoption, "in
those circumstances termination of parental rights likely will not do more harm
than good." 196 N.J. at 108. "The 'good' done to a child in such cases in
which reunification is improbable is permanent placement with a loving
family, which after all is the principal goal of our foster care system." Ibid.
These two sixteen-year-old boys have now been out of their father's care
for half their lives. They have lived with their resource parent for over five
years. Long-term foster care for children who had the promise of adoption by
a resource parent who has provided them a loving home and could secure their
future, because the court has decided the children do not need permanency,
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contrary to State law and public policy, is unacceptable. Although we might
debate the trial judge's opinion about how little difference there is between
KLG and adoption, there can be no debate that the difference between long
term foster care and adoption is vast. See N.J. Div. of Youth & Family Servs.
v. D.P., 422 N.J. Super. 583, 593-94 (App. Div. 2011) (noting the standard
contract between the Division and the resource parent acknowledges the aim of
providing the child in placement a safe and stable home-life by accepting and
nurturing adults, while recognizing the Division alone holds the responsibility
"for making permanent plans for each child placed" and prohibits the resource
parent from making "their own plans for the child's future").
Although we believe these boys are owed a prompt resolution of their
situation, we reluctantly conclude we cannot bring this case to conclusion. It
has been over eighteen months since the trial court's decision in this matter.
Although we do not know the reasons for the delay, we think it too long to act
ourselves in resolving the matter. The children's situation and their wishes and
concerns about adoption could have changed from what it was at the time of
trial.
Accordingly, we reinstate the Division's complaint for guardianship,
conclude the Division has carried its burden of clear and convincing evidence
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on the first three prongs of the statutory best interests standard and remand for
a determination on the fourth prong as to whether termination of defendant's
rights will do more harm than good, with findings made as to each child, see
N.J. Div. of Child Prot. & Permanency v. C.J.R., 452 N.J. Super. 454, 474-75
(App. Div. 2017). The court may direct updated expert reports in its
discretion. In considering whether termination will not do more harm than
good, the court should consider any offer by the resource parent to permit
continued contact between the boys and defendant. See M.M., 189 N.J. at 288
(considering the resource parents' "willingness to permit continued visitation"
as "[i]ntegral to [the Court's] analysis under the fourth prong").
Because the judge who heard the matter has rendered an opinion on the
credibility of the Division's expert, the hearing on remand should take place
before a different judge. See A.W., 103 N.J. at 617. Accordingly, we direct
the matter be specially assigned to a new judge for expeditious disposition,
which shall occur within the next sixty days.
Vacated and remanded for further proceedings not inconsistent with this
opinion. We do not retain jurisdiction.
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