New Jersey Division of Child Protection and Permanency v. N.C.M. and T.E. and J.C. in the Matter of the Guardianship of T.M., M.L.W., and M.A.J.M. , 438 N.J. Super. 356 ( 2014 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3666-13T3
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, December 16, 2014
APPELLATE DIVISION
v.
N.C.M.,
Defendant-Appellant,
and
T.E. and J.C.,
Defendants.
____________________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF T.M., M.L.W., and M.A.J.M., minors.
_____________________________________________
Argued telephonically November 19, 2014 –
Decided December 16, 2014
Before Judges Sabatino, Simonelli, and
Guadagno.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Hudson County, Docket No. FG-09-210-14.
Eric R. Foley, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Mr. Foley, on the
brief).
Renee Greenberg, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Andrea M. Silkowitz, Assistant Attorney
General, of counsel; Ms. Greenberg, on the
brief).
Catherine Davila, Designated Counsel, argued
the cause for minors T.M., M.L.W., and
M.A.J.M. (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Ms.
Davila, on the brief).
The opinion of the court was delivered by
GUADAGNO, J.A.D.
Defendant N.C.M. (Nora)1 appeals from the April 1, 2014
judgment of guardianship which terminated her parental rights to
her daughters T.M. (Tara) and M.L.W. (Mary), and her son,
M.A.J.M. (Matt). At the time of the guardianship trial, Tara,
Mary, and Matt were nine, seven, and thirteen months,
respectively.
Defendant contends that the Division of Child Protection
and Permanency (Division) did not prove by clear and convincing
evidence the third and fourth prongs of the best interests test
required for termination. N.J.S.A. 30:4C-15.1(a).
Specifically, she claims that the Division's failure to provide
reasonable efforts to prevent placement and effectuate
reunification with her children is a direct result of an earlier
1
We employ pseudonyms to protect the privacy of the minors and
for ease of reference.
2 A-3666-13T3
failure by the Division to provide adequate services to her when
she was a minor and under the Division's care and supervision.
We are satisfied that the Division proved the requisite
statutory factors required to terminate defendant's parental
rights by clear and convincing evidence. The circumstances of
this case, however, compel us to discuss the Division's
obligation to provide services, specifically mental health
evaluations and treatment to minors under its care, and whether
the failure to provide such services can be considered in
evaluating reasonable efforts if the minor later becomes a
defendant in a guardianship proceeding.
I.
Nora was born in 1989. Although the record is sparse from
this period, it appears that shortly after her birth, the
Division took custody of Nora and placed her with B.J.M. (Beth)
and her husband, who later adopted her. Nora's birth parents
died during her early childhood and her adoptive father died in
2001. Nora grew up with five siblings, all of whom were adopted
by Beth.
After experiencing problems completing the fourth grade,
Nora was placed in special education classes and was diagnosed
with a reading disorder. It appears that, at some point, Nora
3 A-3666-13T3
was classified as disabled, and Beth received benefits on her
behalf.2
The Division was again involved with Nora in February 2002,
when it received a referral that Nora, who was then twelve, had
been beaten. After determining that Nora was uninjured, the
Division found the allegation to be unsubstantiated. In June
2003, the Division received another referral alleging that Nora
had been injured internally. This time, the Division confirmed
that Nora had been injured, and Beth was responsible. The
record does not indicate what, if anything, the Division did in
response, although Nora continued to reside with Beth.
Later that year or in early 2004,3 the Division removed Nora
and her siblings from Beth's custody due to Beth's alcoholism.
Details on Nora's initial placement are not included in the
record, but in November 2004, when she was fifteen and still
under the Division's care, Nora gave birth to Tara. The
Division placed Nora and Tara in a high school program for teen
mothers, but Nora withdrew from the program in 2005.
2
This conclusion is drawn from Nora's statement to an evaluating
psychologist that Beth took her social security check and used
it to pay Beth's mortgage.
3
The record only indicates that Nora was removed at age
fourteen.
4 A-3666-13T3
In December 2006, Nora gave birth to Mary. Shortly after
Mary's birth, Beth made a referral to the Division alleging that
Nora had moved back into her home without permission. Due to
Beth's substance abuse issues, the Division removed Tara but
permitted Nora, who was then seventeen, to continue living with
Beth.
In May 2007, Beth made another referral to the Division
after an altercation with Nora. Beth told the caseworker that
she wanted Nora out of her house. A Division report indicates
that Tara had been returned to Nora and witnessed the incident
but does not indicate whether the Division took any action.
In December 2010, Beth made another referral to the
Division alleging that Nora "leaves the children with anyone
that is available." Nora had been living at her sister's home
with Tara and Mary, but was thrown out and moved back in with
Beth. Beth also alleged that Nora would not get out of bed to
take care of the children, which she attributed to drug and
alcohol abuse.
The Division investigated the same day. Nora told the
caseworker that she had nowhere to live if she could not stay
with Beth. The caseworker presented Nora with the option of
going to a shelter or paying for a hotel. If she did not find
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housing, the caseworker told Nora that the Division would remove
her children.
Although Nora moved in with a relative, the Division
substantiated her for neglect due to "inadequate shelter" because
"her shelter problem is chronic as she has a pattern of
homelessness for the past six years . . . [and] has been in
shelters, stayed with family members and in friends' homes."
After the December 2010 incident, the Division referred
Nora for homemaker services and psychological and substance
abuse evaluations. Although she attended the homemaker
services, Nora refused to submit to a drug screen and did not
appear for her psychological evaluation. In March 2011, Nora
became homeless for the third time in two months.
The current litigation resulted from a referral received by
the Division in April 2012 alleging that Nora was under the
influence when she picked up her daughters from school. Nora
was so impaired that she could not write her daughters' names to
sign them out of school. Division caseworkers learned that Nora
had been escorted out of the building by police and the girls'
maternal aunt had picked them up. Two days earlier, Nora had
picked up one of her daughters from school and later returned to
the school claiming the child was missing. The child was found
wandering alone near a local daycare center. The Division also
6 A-3666-13T3
learned that Tara had missed thirty-nine days of school and
would be held back in the first grade.
Nora admitted to smoking a mixture of marijuana and PCP
known as "dip" earlier in the day. The caseworker observed that
Nora remained under the influence during the interview, as she
continually opened and closed her eyes, swayed in place, and
alternatively laughed, yelled, or said nothing in response to
the worker's questions. Nora also admitted that she had been
staying in various homes. Tara and Mary confirmed that they had
been staying in Jersey City, but did not know where.
As a result of the investigation, the Division executed an
emergency Dodd removal4 of Tara and Mary. The children were
placed with a resource parent and family friend of Nora's, N.M.
(Natalie), where they remain to date. T.E. (Tom), the
biological father of Tara and Mary, was incarcerated at the time
of removal.
The Division offered services following the removal,
including weekly supervised visitation, substance abuse and
psychological evaluations, substance abuse treatment, parenting
4
A Dodd removal is an emergency removal of a child from the home
without a court order or the consent of the parent or guardian.
It is authorized "if the child is in such condition that the
child's continuance in the place or residence or in the care and
custody of the parent or guardian presents an imminent danger to
the child's life, safety, or health, and there is insufficient
time to apply for a court order." N.J.S.A. 9:6-8.29.
7 A-3666-13T3
skills classes, and two letters to welfare regarding housing
assistance. The Division also assessed three relatives as
potential placement options, but all were ruled out.
Nora failed to appear for her first scheduled psychological
evaluation, but attended the rescheduled visit with Dr. Robert
Kanen. Dr. Kanen diagnosed Nora with marijuana and PCP abuse,
based on the April 2012 incident and her admission that she used
those drugs on a daily basis for six months in 2011. He found
that Nora has an IQ of sixty-seven, is functionally illiterate,
and is "cognitively and learning disabled." Dr. Kanen
recommended substance abuse treatment and parenting skills
classes, but stated that her capacity to benefit from either is
limited due to her cognitive impairments. Nora was referred for
parenting skills classes but was discharged from the program for
non-compliance.
Nora began substance abuse treatment at Health Path in
October 2012, but was discharged from the program after one
month for non-compliance. The Division referred Nora for a new
drug abuse evaluation, after which she began treatment at New
Pathways in December 2012. She successfully completed this
intensive outpatient program two months later.
Nora also participated in daily counseling and group
therapy from June 2012 through February 2013. She attended
8 A-3666-13T3
their Women's Group, Narcotics Anonymous Group, and Anger
Management Group for those nine months.
In February 2013, the Division received a referral from
Jersey City Medical Center regarding the birth of Nora's third
child, Matt.5 The referent alleged that Nora had not received
any prenatal care and suggested that Nora was suffering from
cognitive or psychological impairments that would limit her
ability to care for the child.
A Division caseworker investigated and Nora admitted that
she did not receive prenatal care but explained that she did not
have health insurance. A nurse observed that Matt appeared
healthy and that Nora acted appropriately with him. Drug
screens of Nora and Matt were negative.
Nora claimed to be staying with a friend named James, but
could not provide his last name or address. Nora offered to
stay with a family friend if James' home was deemed
inappropriate. Although the family friend had adopted four
Division children already, her resource parent license had
expired and, as a result, the Division ruled her out as a
placement. The Division took custody of Matt upon his discharge
5
Nora listed J.C. as Matt's putative birth father, but he could
not be located.
9 A-3666-13T3
from the hospital and initially placed him in a separate foster
home, but later placed him in the same home as Tara and Mary.
Nora submitted to a psychological evaluation with Dr.
Jemour Maddux, who concluded that Nora's reunification with her
children could occur within six months if Nora remained drug-
free. He recommended unsupervised visitation leading to
overnight visits, concurrent supervised visitation, therapy with
the children, adult literacy classes, and a support group upon
reunification.
In April 2013, the court approved the Division's permanency
plan of reunification and found the six-month time frame
appropriate. Nora never received unsupervised visitation as the
Division had concerns that she was still using drugs. Nora
tested positive for PCP later that month and again in May 2013.
A supervised visit that month was terminated because she was
visibly under the influence. Nora was referred to the inpatient
program at Straight and Narrow.
As a result of her relapse, the court changed the
permanency goal to termination of parental rights and the
Division filed a complaint seeking guardianship of all three
children.
During evaluations with Dr. Maddux, Tara and Mary disclosed
exposure to Nora while she was "under the influence." Dr.
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Maddux concluded that this indicated neglect. Both girls also
stated that their mother no longer abuses drugs and were
optimistic about reunification. Reports of Nora's visitation
with the girls were positive, with the children displaying a
close bond, loving interactions, and Nora demonstrating good
parenting skills.
Nora was discharged from Straight and Narrow in October
2013 for non-compliance and fraternizing with a male patient.
She tested positive for PCP at a subsequent evaluation. While
she was consequently referred to an inpatient program at Turning
Point, Nora did not attend. Her urine screen was positive for
PCP again later in October 2013.
Nora was again referred for parenting classes, but was
terminated after one month for non-compliance. She was re-
referred for substance abuse treatment at Integrity House, but
was non-compliant, and her case was closed in December 2013.
She was re-referred for parenting classes in March 2014, but was
discharged for failure to attend.
On January 27, 2014, Tom executed an identified surrender
of his parental rights of Tara and Mary to Natalie. Nora's
guardianship trial began in March 2014. The court first heard
from caseworker Raymond Brown, who testified to the services
offered to Nora to effectuate reunification, including parenting
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classes, substance abuse assessments, substance abuse treatment,
supervised visitation, psychological evaluations, relative
assessments, transportation assistance, and referrals for
housing assistance. He stated that Nora was transient, had
failed to complete parenting classes or inpatient substance
abuse treatment, and could not provide proof of employment. He
indicated that Tara and Mary had expressed their desire to be
adopted by Natalie.
Dr. Kanen testified that Nora's severe parenting deficits
made it very difficult for her to provide her children with a
stable home. He noted Nora's history of drug abuse, and that
she did not believe she needed drug treatment. Dr. Kanen also
noted that Nora remained dependent on living with others due to
her continued homelessness, and that she was aware of the
services that the Division wanted her to complete but believed
they were unnecessary. Dr. Kanen concluded that based on Nora's
cognitive impairments, unstable housing, and continued use of
PCP, she was incapable of providing the three children with a
permanent, safe, and secure home. He also testified that her
ability to parent is unlikely to change in the foreseeable
future because her psychological issues are chronic and she has
not addressed her drug problem.
12 A-3666-13T3
Dr. Kanen testified that the bonding evaluation revealed
that the girls displayed "avoidant attachment" as shown by their
withdrawal after witnessing Nora's oppositional behavior toward
a Division caseworker. He concluded that Nora and Matt have no
attachment, and that the girls' attachment to her "at best is
very, very insecure."
By contrast, Dr. Kanen testified that the girls engaged in
conversation with Natalie and appeared excited and happy. He
concluded that they are securely attached to Natalie and,
although Tara and Mary would likely experience some grief if
Nora's parental rights were terminated, they would not suffer
serious and enduring harm and Natalie could ameliorate what
grief arose. Due to a lack of any attachment, Dr. Kanen noted
that Matt would suffer no harm upon termination. He testified
that all three children would be at risk for serious and
enduring harm if returned to Nora's care.
Neither the law guardian, who supported the Division's
request for termination, nor Nora presented any witnesses. The
court found that the Division had met its burden of proving all
four prongs of N.J.S.A. 30:4C-15.1 by clear and convincing
evidence, and entered a judgment of guardianship terminating
Nora's rights to Tara, Mary, and Matt.
13 A-3666-13T3
On appeal, Nora presents the following bifurcated argument:
POINT I
THE DIVISION FAILED TO MEET ITS BURDEN OF
PROOF WHERE THERE WAS NOT CLEAR AND
CONVINCING PROOF SUFFICIENT TO SATISFY THE
FOUR PRONGS OF N.J.S.A. 30:4C-15.1(A).
A. THE DIVISION FAILED TO PROVIDE
REASONABLE EFFORTS TO PREVENT
PLACEMENT AND TO EFFECTUATE
REUNIFICATION BECAUSE THE
UNDERLYING PREDICATE CIRCUMSTANCES
OF THIS CASE THAT LEAD TO ANY
ALLEGED HARMS TO THE CHILDREN WERE
A DIRECT RESULT OF THE DIVISION'S
FAILURE TO PROTECT N.M. AND HER
CHILDREN DURING N.M.'S MINORITY.
B. THE DIVISION FAILED TO PROVIDE
REASONABLE EFFORTS TOWARDS
REUNIFICATION AFTER THE CHILDREN
WERE REMOVED.
C. THE DIVISION FAILED TO PROVE
BY CLEAR AND CONVINCING EVIDENCE
THAT TERMINATION OF PARENTAL
RIGHTS WILL NOT DO MORE HARM THAN
GOOD DUE TO THE DIVISION'S
INTERFERENCE IN THE COMPARATIVE
BONDING EVALUATIONS.
II.
Our review of a trial court's judgment terminating parental
rights is limited. N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J. 261, 278 (2007). The trial court's factual findings
are binding on appeal if supported by adequate, substantial, and
credible evidence. Cesare v. Cesare, 154 N.J. 394, 412 (1998)
(citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J.
14 A-3666-13T3
474, 484 (1974)). Particular deference is afforded to family
court fact-finding because of the family courts' special
jurisdiction and expertise in family matters. Id. at 413. A
trial court's legal conclusions, however, are not entitled to
deference. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J.
145, 183 (2010).
A parent's right to raise and maintain a relationship with
his or her child is constitutionally protected. In re
Guardianship of K.H.O., 161 N.J. 337, 346 (1999). That right is
not absolute, however, and must be balanced against the State's
parens patriae responsibility to protect the welfare of its
children. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J.
382, 397 (2009). Courts apply the "best interests of the child"
standard to properly balance parental rights against the State's
interest. K.H.O., supra, 161 N.J. at 347. That standard
permits termination of parental rights only where the State
proves the following elements by clear and convincing evidence:
(1) The child's safety, health or
development has been or will continue
to be endangered by the parental
relationship;
(2) The parent is unwilling or unable to
eliminate the harm facing the child or
is unable or unwilling to 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
15 A-3666-13T3
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).]
These four factors are neither discrete nor separate, but
instead overlap to provide a comprehensive standard that
identifies a child's best interests. N.J. Div. of Youth &
Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007). The
analysis is "extremely fact sensitive and require[s]
particularized evidence" for the given case. Id. at 606. For
involuntary termination, the "cornerstone of the inquiry [is]
whether the parent can cease causing his or her child harm and
become fit to assume the parental role within time to meet the
child's needs." N.J. Div. of Youth & Family Servs. v. L.J.D.,
428 N.J. Super. 451, 479 (App. Div. 2012) (citation omitted).
Nora does not contest that the Division proved prongs one
and two by clear and convincing evidence. Therefore, we address
only her challenge to the proofs as to prongs three and four.
16 A-3666-13T3
A.
Under the third prong of the best-interests standard, the
Division must make "reasonable efforts to provide services to
help the parent correct the circumstances" that necessitated
removal and placement of the child in foster care. N.J.S.A.
30:4C-15.1(a)(3). "Reasonable efforts" may include parental
consultation, plans for reunification, services essential to
achieving reunification, notice to the family of the child's
progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c).
More specific services include day care, housing assistance,
referrals to drug treatment, medical or health care, parenting
classes, financial assistance, and the like. In re Guardianship
of D.M.H., 161 N.J. 365, 391 (1999).
The reasonableness of the Division's efforts "is not
measured by their success." L.J.D., supra, 428 N.J. Super. at
488. Even if the Division's efforts are deficient, the best
interests of the child standard still controls whether
termination is appropriate. Ibid. Defendant's challenge to the
prong-three proofs is based on her claim that the Division
failed to protect her and her children during her minority when
she was under the Division's care. She alleges that these
failures caused any alleged harm suffered by the children during
the pendency of this litigation. Defendant does not contest
17 A-3666-13T3
that the Division provided multiple psychological evaluations,
with follow-up treatment. Simply stated, Nora's argument is
that the Division's failure "to protect [her] and provide
reasonable services when she was a child-parent caused the
almost inevitable issues that arose in [her] early adulthood
years."
We acknowledge that the Division's apparent failure to
provide services to Nora after her removal from Beth's home when
she was fourteen gilds this argument with superficial appeal.
However, we are aware of no statutory authority or precedent
holding that the Division's failure to provide services to a
child under its care can be considered in a subsequent
guardianship matter involving that same child in her later
capacity as a parent when assessing the adequacy of services
required under Title 30.
We also view defendant's argument that her problems would
have been lessened or even abated had she received adequate care
during her minority as speculative. The fact remains, and Nora
does not dispute, that during the pendency of this litigation
the Division provided ample services to her and she failed to
take full advantage of them. While Nora's argument that the
Division's services were offered too late to functionally assist
her in becoming a suitable parent finds ample support in the
18 A-3666-13T3
record, we are compelled to reject it as untethered to statutory
or other existing legal authority.
The Division removed Nora from Beth's custody when she was
fourteen, and remained involved with her and her siblings over
the next three years. The record is devoid of any evidence of
services provided to Nora during this time when she gave birth
to two children. Nor is there any explanation why the Division
removed Tara from Beth's home because of her alcoholism but
allowed Nora, also a minor under the Division's care, to remain.
Even a cursory examination of Nora's history would have
alerted the Division to her struggles in school and apparent
learning disability. Had the Division provided a psychological
evaluation when Nora was first removed, there would have been
insight into her low IQ, and help could have been provided.
N.J.A.C. 10:122D-2.5(a) requires such evaluations and
follow-up services:
The Division representative shall make every
reasonable effort to assure that each child
in out-of-home placement receives
appropriate and necessary health care,
including mental/behavioral health services.
This obligation is reaffirmed in subsection (f):
The Division representative shall assure
that the child receives a medical
examination at least annually after the
initial medical examination performed at the
time of placement . . . . The Division
representative shall assure that each child
19 A-3666-13T3
with a suspected mental/behavioral health
need receives a mental/behavioral health
assessment and identified follow-up care.
At a minimum, the child's examinations shall
comply with the Early and Periodic Screening
and Diagnostic Treatment periodicity
schedule in accordance with N.J.A.C. 10:54-
5.10 through 5.13.
After the Division removed Nora from Beth's custody, the
only record of Division interaction with Nora thereafter came as
the result of Beth's numerous referrals. The only
"substantiated" allegation against Nora during this period is
that she was homeless from ages fourteen to nineteen, a highly
questionable finding. Other than the placement in a high school
for teen mothers in 2004, the record is devoid of Division
efforts to assist Nora with any of her problems during these
formative years.
In 2012, Dr. Kanen determined Nora's IQ was sixty-seven,
she was functionally illiterate, and cognitively and learning
disabled. While it is regrettable that the Division did not
identify and address these deficiencies earlier, we decline to
recognize a causal link between those failures and the adequacy
of the services that were ultimately offered to Nora as a
defendant parent in this proceeding.
B.
Nora challenges the Division's proofs under the fourth
prong and argues that a Division caseworker's interjection into
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her bonding evaluation "caused a skewed result that was then
relied upon by the court" in determining that termination would
not do more harm than good. We disagree.
To satisfy the fourth prong of the best-interests test for
termination, the Division must prove by clear and convincing
evidence that "[t]ermination of parental rights will not do more
harm than good." N.J.S.A. 30:4C-15.1(a)(4). "The question to be
addressed . . . 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." K.H.O., supra, 161 N.J. at 355.
The child's "paramount need" for permanent, stable, and
defined parent-child relationships is key. Ibid. It is
therefore against a child's best interests to prolong permanent
placement because the natural parent is unable to care for the
child for a protracted period. N.J. Div. of Youth & Family
Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996).
A court must inquire into the child's relationship with
both the natural and foster parents on prong four. K.H.O.,
supra, 161 N.J. at 355. To that end, the Division should offer
the testimony of a "well qualified expert who has had full
opportunity to make a comprehensive, objective, and informed
21 A-3666-13T3
evaluation of the child's relationship with the foster parents."
In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[W]here it
is shown that the bond with foster parents is strong and, in
comparison, the bond with the natural parent is not as strong,
that evidence will satisfy the requirement of N.J.S.A. 30:4C-
15.1(a)(4) that termination of parental rights will not do more
harm than good to the child." K.H.O., supra, 161 N.J. at 363.
Here, the trial court relied on Dr. Kanen's conclusions
from the bonding evaluations he conducted with the foster parent
in January 2014 and with Nora in February 2014. Dr. Kanen
testified that the children are securely attached to Natalie but
have only an insecure attachment to Nora and would not suffer
serious or enduring harm if permanently separated from Nora, but
would suffer such harm if returned to her care. He further
opined that Natalie is able to ameliorate any emotional harm
resulting from the termination of Nora's parental rights. The
court noted that Nora failed to present any evidence to the
contrary and found that the Division had satisfied this prong.
Nora asserts that the court's comparative bonding analysis
is flawed because a Division caseworker interfered with her
evaluation. Dr. Kanen testified that he permitted caseworker
Kim Johnson to enter the room in which the bonding evaluation
was to take place immediately behind himself and the family.
22 A-3666-13T3
The evaluation began in the hallway two to three minutes
previously. Johnson and Nora argued for a few minutes, at which
point Johnson left to get her supervisor. The supervisor and
Johnson returned and continued to argue with Nora for several
minutes more, while Tara and Mary became continually more
withdrawn. Dr. Kanen did not stop or move the conversation
elsewhere to avoid exposing the children to the conflict. He
testified that he allowed the argument to continue because he
did not anticipate the discussion would escalate, he had never
conducted an evaluation that had been interrupted by the
Division, and did not know whether to acquiesce or object.
Dr. Kanen noted that the girls were initially happy at the
evaluation, but became withdrawn and depressed upon witnessing
Nora's oppositional behavior toward the Division workers. In
his report, Dr. Kanen wrote that this incident was "an example
of how [Nora's] oppositional behavior can have a detrimental
impact on the emotional development of these two girls. [Nora]
had no insight into the reaction of [Tara] and [Mary]. She
showed no evidence of sensitivity to how her behavior and
emotions affect her children."
Although it would have been preferable that any discussions
between the caseworker and defendant had not interfered with the
evaluations, we do not find the procedure so flawed that it
23 A-3666-13T3
should have been disregarded by the trial court. Ultimately,
Dr. Kanen's testimony remains unrebutted and the trial court
credited his testimony in concluding that the children would not
suffer more harm than good from terminating Nora's parental
rights. The record contains substantial, credible evidence to
support this conclusion.
Affirmed.
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