DCPP VS. A.T.H., C.H. AND F.L.J. IN THE MATTER OF THE GUARDIANSHIP OF K.Z.T.H., K.E.-L.H. AND K.U.J.H. (FG-01-0004-18, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-0735-18T2
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
A.T.H.,
Defendant-Appellant,
and
C.H. and F.L.J.,
Defendants.
_________________________
IN THE MATTER OF THE
GUARDIANSHIP OF
K.Z.T.H.,
Minor-Appellant,
and
K.E.-L.H. and K.U.J.H.,
Minors-Respondents.
__________________________
Argued February 27, 2020 – Decided March 26,2020
Before Judges Alvarez and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic County,
Docket No. FG-01-0004-18.
Patricia A. Nichols, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Robyn A. Veasey, Deputy
Public Defender, of counsel; Patricia A. Nichols, on the
briefs).
Amy Melissa Young, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Amy Melissa Young, on
the brief).
Noel Christian Devlin, Assistant Deputy Public
Defender, argued the cause for minor K.Z.T.H. (Joseph
E. Krakora, Public Defender, Law Guardian, attorney;
Noel Christian Devlin, of counsel and on the brief).
Damen John Thiel, Designated Counsel, argued the
cause for minors K.E.-L.H. and K.U.J.H. (Joseph E.
Krakora, Public Defender, Law Guardian, attorney;
Damen John Thiel, on the brief).
PER CURIAM
A-0735-18T2
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Defendant A.T.H. (Angie)1 appeals from the September 27, 2018
judgment of the Family Part terminating her parental rights to her three children ,
as does one of her children, K.Z.T.H. (Kerry). We affirm.
I.
The following facts are derived from the record and the trial court's
findings of fact. Angie is the mother of three children: Kerry, K.E.-L.H.
(Kalvin), and K.U.J.H. (Kenny). Kerry's father has not been identified. Kalvin's
father, defendant C.H., did not appeal the judgment terminating his parental
rights. Kenny's father, defendant F.L.J., surrendered his parental rights to his
son.
Plaintiff Division of Child Protection and Permanency (DCPP) first
became involved with this family in 2009, three days after Kerry was born, a nd
remained involved for almost a decade, receiving twelve referrals for neglect,
mental health issues, inadequate supervision, and substance abuse. While some
referrals were not substantiated, during the course of DCPP investigations,
Angie admitted marijuana use and that she had been diagnosed with
1
We identify defendant and other parties by initials and pseudonyms to protect
confidential information in the record. R. 1:38-3(d)(12).
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schizophrenia and bipolar disorder and had not been taking her prescribed
medication for five years. As a result, she was hearing voices.
In addition to Angie's mental health issues, DCPP had concerns about her
parenting skills, substance abuse, anger management, and ability to maintain a
safe and clean home for her children. DCPP referred Angie to substance abuse
treatment and assistance with parenting skills, anger management, budgeting,
housing, employment, and transportation. At times, Angie was noncompliant
with services. At other times, she completed treatment, but did not maintain
long-term compliance. Angie gave birth to Kalvin during this period.
After a referral alleging Angie hit Kerry with a nebulizer tube, DCPP
determined she presented a "substantial risk of physical injury" to Kerry and
maintained an environment "injurious to [the] health and welfare" of the child.
DCPP continued to provide drug screens and substance abuse treatment, but
Angie was discharged twice for noncompliance and threatening behavior.
DCPP subsequently investigated a referral by Kerry's school that she had
a long abrasion on her neck and bruises on her back and forearms. Kerry alleged
Angie beat her with a cleaning instrument. Angie denied striking the child and,
when DCPP personnel found a broken mop in the home, claimed another child
may have hit Kerry. Later, Kerry claimed to have hit herself. Because of the
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inconsistent versions of events, DCPP initiated a safety protection plan with
Angie's adoptive mother supervising her care of the children.
Although DCPP continued to provide substance abuse treatment, Angie
twice tested positive for illegal substances and was suspended from the program.
DCPP referred Angie to an anger management program after she assaulted her
girlfriend. She ended services prematurely. Angie did not comply with other
services or medication monitoring.
Angie also demonstrated an inability to address concerns arising from
Kerry's increasingly worrisome behavior. Angie called DCPP seeking help
controlling the child. A DCPP worker who responded to the home found Kerry
lying on a bed with her pants down and another child sitting next to her. When
told about what the worker discovered, Angie became "hysterical" and said she
wanted Kerry removed from the home.
Angie subsequently called DCPP asking for Kerry's removal because the
child tried to set fire to the home. On the recommendation of a therapist, DCPP
provided individual therapy, family therapy, and a behavioral assistant to Angie
and her children. Angie expressed "extremely unrealistic" concerns about her
children, and expressed fear of Kerry because the child "knows [Angie] cannot
beat her" and because Kerry made unfounded allegations against her.
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In light of Angie's non-compliance with services and concerns over her
ability to safely parent the children, DCPP filed a complaint seeking care,
custody, and supervision of Kerry and Kalvin. With Angie's consent, the
children were removed from the home and placed in separate, nonrelative
resource homes. The court ordered Angie to comply with parenting skills
classes and a psychological evaluation and treatment.
During her first visit with the children, Angie told Kerry that Kerry was
the reason the children were in foster care. Angie later told a DCPP worker she
"would rather not visit with her daughter and only visit her son." In light of
Kerry's escalating behavioral issues during visits, DCPP suspended Angie's
visits with the child.
For a period of time, Angie was compliant with services. DCPP worked
with Angie on a reunification plan, putting necessary services, including family
counseling, in place. Supervised visits with Angie and Kerry resumed, but the
child's behavioral issues resurfaced.
Shortly thereafter, Angie gave birth to Kenny. The child was released to
Angie's custody because she had been complying with services, and DCPP had
no concerns regarding the child's father. DCPP provided in-home services and
a home health nurse.
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Angie soon began to exhibit behaviors that raised concerns with DCPP.
She threw away all of the children's toys. She was verbally abusive to the
children, threatened to beat Kerry, and imposed unusual physical punishments
on the child. She refused to address those issues with service providers.
Angie began overfeeding Kenny to the point of obesity and engaged in
unsafe sleep practices with the child. She resisted assistance, refused to discuss
Sudden Infant Death Syndrome, and said her feeding practices were appropriate
because she knew how to perform the Heimlich maneuver. A DCPP worker
found a Facebook video of Angie force-feeding cake to Kenny while he choked
and cried. Other videos suggested Angie was co-sleeping with Kenny. DCPP
effectuated an emergency removal of the child.
Angie continued to be non-compliant with services. She made delusional
statements and was combative and uncooperative with DCPP workers.
Ultimately, DCPP filed complaints seeking guardianship of all three
children. Angie was non-compliant with therapy intended to strengthen her
bond with Kerry. Her failure to attend therapy sessions "created unnecessary
emotional turmoil" for the child.
Angie was inconsistent with visiting the children. Between 2016 and
2017, she cancelled at least twenty-eight visits. She failed to confirm or missed
A-0735-18T2
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at least twenty visits. She was late to at least nineteen visits and asked to end
fifteen visits early. When she did visit the children, her behavior was
problematic. Angie called Kerry a liar and blamed the children's situation on
Kerry's "stupidity." When visits were subsequently suspended, Angie shrugged
her shoulders and said, "[w]ell[,] she did it to herself."
After visits were restored, Angie asked that she not be left alone with
Kerry. She said she was uncomfortable changing Kalvin's diaper because she
was startled by his penis. She attempted to save Kenny's soiled diaper because
she had "nothing else from him." During a DCPP inquiry, Angie admitted she
saved Kenny's umbilical cord and foreskin, and Kerry's vomit in her freezer as
keepsakes.
On September 27, 2018, after a fourteen-day trial, the trial court issued a
comprehensive oral opinion. The court found DCPP proved each element of
N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence and established
termination of Angie's parental rights was in the children's best interests. The
court based its conclusion on the testimony of both expert and fact witnesses
after finding them credible. The court rejected Angie's testimony, finding she
"did not demonstrate a clear understanding of her situation or how to resolve it"
and "acted in highly concerning fashions during the trial[,]" including
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inappropriate reactions to testimony and open hostility. In addition, the court
concluded Angie lacked credibility, in part because she feigned illness in court
on two occasions in attempts to adjourn the trial.
The court concluded Angie is unable to provide a safe and stable home for
her children and that in the almost nine years during which DCPP was providing
services to Angie and her family, she "has not stabilized her life in any concrete
way[,]" "has shown little awareness of her mental-health issues[,]" did "not
consistently take her medication[,]" and remained resistant to mental-health
treatment.
On September 27, 2018, the court entered a judgment terminating Angie's
parental rights to her three children.
Kerry thereafter moved for visitation with Angie pending appeal. DCPP
opposed the motion. Angie's counsel did not respond to the motion and was not
invited to do so by the trial court. The court, noting the expert opinion that
Angie's inconsistent visitation with Kerry harmed the child, the absence of an
expert opinion that Angie and Kerry have a positive relationship, and the just-
adjudicated termination of Angie's parental rights, denied the motion.
This appeal followed. Angie argues the trial court: (1) erred when making
findings of fact by relying on portions of documents it had previously excluded
A-0735-18T2
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from admission into evidence and on the opinions of non-testifying experts
embedded in the reports of testifying experts; (2) failed to set forth sufficient
findings of fact and conclusions of law in support of its judgment; (3) erred in
its analysis of whether the statutory elements of N.J.S.A. 30:4C-15.1(a) had been
proven; and (4) applied an incorrect legal standard when it denied Kerry's
motion for visitation with Angie pending appeal.
Kerry, who has been placed in a non-adoptive home with caregivers
trained to address her behavioral needs, also appealed the September 27, 2018
judgment. She argues the trial court erred when it concluded that termination
of Angie's parental rights would not do more harm than good because Kerry has
a beneficial relationship with Angie and there is no evidence that her adoption
is forthcoming.
II.
We begin with Angie's evidentiary arguments. "In reviewing a trial court's
evidential ruling, an appellate court is limited to examining the decision for
abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (citing Brenman
v. Demello, 191 N.J. 18, 31 (2007)). The general rule as to admission or
exclusion of evidence is that "[c]onsiderable latitude is afforded a trial court in
determining whether to admit evidence, and that determination will be reversed
A-0735-18T2
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only if it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82
(1998); see also State v. J.A.C., 210 N.J. 281, 295 (2012). Under this standard,
an appellate court should not substitute its own judgment for that of the trial
court, unless "the trial court's ruling 'was so wide of the mark that a manifest
denial of justice resulted.'" State v. Marrero, 148 N.J. 469, 484 (1997) (quoting
State v. Kelly, 97 N.J. 178, 216 (1984)).
DCPP offered into evidence screening summaries and investigation
reports regarding Angie that contained information with respect to prior referrals
to the agency. Those documents contained a hearsay statement, noted in several
places, from a daycare provider that Angie brought Kerry to daycare dirty and
without food. The allegation against Angie was not established, as noted in the
relevant documents. The trial court barred admission of the hearsay statement.
However, only one reference to the statement in the documents was redacted.
The court stated it would not consider other references to the allegation in the
documents.
Angie argues that despite the trial court's evidentiary decision, Kalvin and
Kenny's law guardian referred to the hearsay statement, which was also alleged
in DCPP's complaint, in closing argument. In addition, the trial court referred
to the hearsay statement in its opinion and cited an incorrect exhibit number
A-0735-18T2
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when it did so. Having carefully reviewed the record, we see no error clearly
capable of producing an unjust result arising from the trial court's reference to
the hearsay statement in its opinion. The trial court was aware that the allegation
in the hearsay statement was not established. In addition, the court's reference
to the statement was not determinative of its legal conclusions, given the
significant amount of evidence in the record supporting termination of Angie's
parental rights. The error in the trial court's identification of the relevant exhibit
number was immaterial to its analysis and is not a basis to reverse its judgment.
We have reviewed Angie's other arguments relating to the trial court's
evidentiary rulings and conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
With respect to the trial court's judgment terminating Angie's parental
rights, our scope of review on appeal from an order terminating parental rights
is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).
We will uphold a trial judge's factfindings if they are "supported by adequate,
substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G.,
217 N.J. 527, 552 (2014). "We accord deference to factfindings of the family
court because it has the superior ability to gauge the credibility of the witnesses
who testify before it and because it possesses special expertise in matters related
A-0735-18T2
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to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448
(2012); see Cesare v. Cesare, 154 N.J. 394, 413 (1998). "Only when the trial
court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an
appellate court intervene and make its own findings to ensure that there is not a
denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104
(2008) (quoting G.L., 191 N.J. at 605). We also accord deference to the judge's
credibility determinations "based upon his or her opportunity to see and hear the
witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88
(App. Div. 2006). No deference is given to the court's "interpretation of the
law" which is reviewed de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012).
When terminating parental rights, the court focuses on the "best interests
of the child standard" and may grant a petition when the four prongs set forth in
N.J.S.A. 30:4C-15.1(a) are established by clear and convincing evidence. In re
Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). "The four criteria
enumerated in the best interests standard are not discrete and separate; they
relate to and overlap with one another to provide a comprehensive s tandard that
identifies a child's best interests." Id. at 348.
N.J.S.A. 30:4C-15.1(a) requires DCPP to prove:
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(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.
After carefully reviewing Angie's arguments in light of the record and
applicable legal principles, we are convinced there is clear and convincing
evidence supporting the trial judge's findings of fact and her legal conclusion
that the four prongs of the statute were satisfied and that it was in the children's
best interests to terminate Angie's parental rights. While Angie loves her
children, she is not capable of safely caring for them now or in the foreseeable
future. The children's only hope for a permanent placement home lies in
termination of Angie's parental rights.
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We do not agree with Angie's argument the trial court erred when it denied
Kerry's motion for visitation pending appeal.2 Angie argues the trial court
should have analyzed the motion under Crowe v. DeGioia, 90 N.J. 126 (1982),
and Rule 4:52, as an application for temporary relief. She also argues she was
denied due process because her attorney did not respond to Kerry's motion and
was not invited to do so by the court.
According to N.J.S.A. 30:4C-20,
[i]f upon the completion of the hearing the court is
satisfied that the best interests of the child require that
the child be placed under proper guardianship, the court
shall make an order terminating parental rights and
committing the child to the guardianship and control of
[DCPP], and the child shall thereupon become the legal
ward of [DCPP], which shall be the legal guardian of
the child for all purposes, including the placement of
the child for adoption.
Termination of parental rights serves to make the parent a legal stranger
to the child. In re Guardianship of S.C., 246 N.J. Super. 414, 428 (App. Div.
1991). After termination of Angie's parental rights, DCPP became the guardian
of the children. It is well-settled that "a successful guardianship action under
N.J.S.A. 30:4C-15 to -24 necessarily entails a cessation of visitation." N.J. Div.
2
We note Kerry did not appeal the trial court's denial of her motion.
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of Youth and Family Servs. v. D.C., 118 N.J. 388, 395 (1990). In the absence
of DCPP's consent, there was no basis for visitation pending appeal.
We do not agree with Angie's argument the holding in Crowe should have
been applied to Kerry's motion for visitation pending appeal. Two other
precedents upon which Angie relies, In re D.C., 203 N.J. 545 (2010), which
concerns post-adoption visitation among siblings, and N.J. Div. of Youth &
Family Servs. v. I.S., 202 N.J. 145, 178-79 (2010), concerning visitation prior
to judgment terminating parental rights, are not applicable here.
We are also not persuaded by Kerry's argument that the trial court erred
in terminating Angie's parental rights to her. There is clear and convincing
evidence in the record Kerry had an ambivalent and insecure attachment to
Angie. The trial court accepted expert testimony that permanency planning,
other than reunification with Angie, is recommended, even though Kerry is not
in a pre-adoptive home. In addition, the court found credible the expert's
testimony Angie's mental health and substance abuse issues make reunification
in the foreseeable future highly unlikely, in part because she is likely incapable
of handling Kerry's behavioral issues.
Affirmed.
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