DCPP VS. J.O. AND C.O.IN THE MATTER OF THE GUARDIANSHIP OF C.O. AND K.O.(FG-02-0031-15, BERGEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-0233-15T3
A-0291-15T3
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.O. and C.O.,
Defendants-Appellants.
________________________________
IN THE MATTER OF THE GUARDIANSHIP
of C.O. and K.O., Minors.
_________________________________
Submitted October 3, 2017 – Decided October 25, 2017
Before Judges Reisner and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FG-02-0031-15.
Joseph E. Krakora, Public Defender, attorney
for appellant J.O. (Anastasia P. Winslow,
Designated Counsel and on the brief).
Lesnevich, Marzano-Lesnevich, Trigg, O'Cathain
& O'Cathain, LLC, attorneys for appellant C.O.
(Amanda S. Trigg, of counsel and on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Jane S. Blank, Deputy
Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Todd Wilson,
Designated Counsel, on the brief).
PER CURIAM
The parents of two children appeal from an August 26, 2015
judgment terminating their parental rights to their daughters and
granting guardianship of the children to the Division of Child
Protection and Permanency (Division). They also appeal from an
October 12, 2016 order denying their motions to vacate or
reconsider the judgment. We affirm because the evidence presented
by the Division at the guardianship trial and a subsequent
evidentiary hearing clearly and convincingly established the four
prongs necessary for terminating parental rights in accordance
with the best interests of the children. See N.J.S.A. 40:4C-
15.1(a).
I.
J.O. (Jill), the mother, and C.O. (Charles), the father, are
the parents of C.O. (Cara), born in 2007, and K.O. (Kathy), born
in 2008.1 The Division became involved with the family in January
1
To protect privacy interests and for ease of reading, we use
initials and fictitious names for the parents and child. See R.
1:38-3(d)(12).
2 A-0233-15T3
2012. Initially, the Division had concerns related to unsanitary
living conditions and the children's hygiene. The children's
teacher reported that Cara and Kathy came to school several times
with fecal matter on their clothing and school supplies and that
their faces, nails, and clothing were often dirty.
Thereafter, the Division received reports related to domestic
violence by Charles against Jill. In March 2012, Jill described
two instances of domestic violence by Charles against her. The
Division referred Jill and Charles for counseling and recommended
psychological evaluations and parenting assessments. The Center
for Evaluation and Counseling (CEC) conducted evaluations and
concluded that Jill was a "high-risk parent for child neglect" and
Charles was "at-risk for aggressive and violent behaviors given
his significant anger management difficulties[.]"
In April 2013, the Division learned that Jill was in a
relationship with a convicted sex offender, who was registered
under Megan's Law, N.J.S.A. 2C:7-1 to -11. The Division also
learned that the offender was living in the family's home with the
children. Accordingly, the Division instituted a Safety
Protection Plan to prevent the sex offender from having contact
with the children. On multiple occasions, however, Jill and
Charles violated the plan by allowing the sex offender to stay at
the home and socialize with the children.
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By July 2013, the Division had increasing concerns regarding
Jill and Charles repeatedly allowing their young daughters to be
in the presence of and exposed to the sex offender. The Division
was also concerned that Charles continued to struggle with anger
management issues, and that the relationship between Charles and
Jill was volatile and having a negative impact on the children.
Accordingly, in July 2013, the Division conducted an emergent
removal of the children. Since then, the children have been in
the care of relatives and, most recently, they have lived with
their paternal grandmother for a sustained period.
Both before and after the removal of the children, the
Division provided the parents with various services, including
psychological evaluations, individualized counseling, anger
management programs, parenting classes, and alternatives to
domestic violence training (ADV). Jill's and Charles's attendance
at treatment and counseling services was inconsistent, and they
did not complete many of the services arranged by the Division.
A five-day guardianship trial was conducted between March and
April 2015, before Judge John A. Conte. The Division presented
testimony from the children's paternal uncle and a Division
caseworker, and expert testimony from Dr. Robert Miller. Dr.
James Reynolds presented expert testimony on behalf of Charles.
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Based on the evidence at trial, Judge Conte found that the
Division presented clear and convincing evidence of the four prongs
necessary to terminate both Jill's and Charles's parental rights.
N.J.S.A. 30:4C-15.1(a). In his 130-page written opinion, Judge
Conte made detailed findings concerning the parents' abuse and
neglect of Cara and Kathy that placed them at risk of harm. He
found that Jill and Charles were unwilling or unable to eliminate
the harm facing Cara and Kathy despite having been provided with
a number of services designed to help them achieve reunification.
Judge Conte also found that the Division made reasonable efforts
to reunify Jill and Charles with Cara and Kathy and explored, but
properly ruled out, certain family members as potential caregivers
of Cara and Kathy. Finally, relying on the expert testimony of
Dr. Miller, Judge Conte found that Cara and Kathy would suffer
harm if they were removed from their paternal uncle and
grandmother, and it would not do more harm than good to terminate
both Jill's and Charles's parental rights with the plan that Cara
and Kathy be adopted by their paternal uncle.
Both parents appealed from the August 26, 2015 judgment.
While that appeal was pending, the paternal uncle permanently left
the grandmother's home and made it clear that he no longer intended
to adopt his nieces. The children remained in the care of the
paternal grandmother, who expressed a commitment to adopting them.
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Jill, and subsequently Charles, filed Rule 4:50-1 motions to
remand the matter for reconsideration of the guardianship judgment
in light of the changed circumstances regarding the permanency
plan, and to address other evidentiary issues that arose during
the trial.
On remand, Judge Conte settled the record, and thereafter,
the matter was transferred to Judge William R. DeLorenzo. To
address the change in the permanency plan, Judge DeLorenzo directed
the parties to conduct bonding evaluations between the grandmother
and each of the children. The judge found no basis to address the
other evidentiary issues raised and limited his review to whether
the fourth prong of the best interests test was satisfied.
On September 30, 2016, Judge DeLorenzo conducted a hearing
and took expert testimony from Dr. Miller, Dr. Reynolds, and Dr.
Goldstein. Each expert had conducted bonding evaluations between
the children and the paternal grandmother. All three experts
found that the children had a strong, secure bond with the paternal
grandmother and that she was an appropriate caregiver to the
children. Accordingly, Judge DeLorenzo found clear and convincing
evidence to satisfy the fourth prong of the best interests test.
On October 12, 2016, Judge DeLorenzo issued a written opinion
detailing his findings and entered an order enforcing the August
26, 2015 guardianship judgment.
6 A-0233-15T3
II.
Jill and Charles each appeal from the August 26, 2015 judgment
and October 12, 2016 order. They argue that the Division failed
to present clear and convincing evidence necessary for terminating
their parental rights. Further, they contend that due to changed
circumstances regarding the permanency plan, the guardianship
judgment should be vacated. Jill also argues that the court erred,
on remand, by refusing to consider evidence of her completion of
ADV and address the applicability of the Americans with
Disabilities Act (ADA) to services provided by the Division.
The scope of our review of an appeal from an order terminating
parental rights is limited. N.J. Div. of Youth & Family Servs.
v. R.G., 217 N.J. 527, 552 (2014). We uphold a trial judge's
factual findings if they are "supported by adequate, substantial,
and credible evidence." Ibid. "We accord deference to fact
findings 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 to
the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.
420, 448 (2012). We will not overturn a family court's factual
findings unless they "went so wide of the mark that the judge was
clearly mistaken." N.J. Div. of Youth & Fam. Servs. v. G.L., 191
N.J. 596, 605 (2007). We do not, however, give "special deference"
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to the court's interpretation of the law. D.W. v. R.W., 212 N.J.
232, 245 (2012).
When considering termination of parental rights, the court
focuses on the "best interests" of the children. In re
Guardianship of K.H.O., 161 N.J. 337, 347 (1999). In striking a
balance between a parent's constitutional rights and the
children's fundamental needs, courts employ a four-prong test
under N.J.S.A. 30:4C-15.1(a), which requires clear and convincing
evidence that:
(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 [or her] 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.
These four criteria "are neither discrete nor separate, but are
interrelated and overlap." N.J. Div. of Youth & Family Servs. v.
8 A-0233-15T3
L.J.D., 428 N.J. Super. 451, 479 (App. Div. 2012). Together they
"provide a comprehensive standard that identifies a child's best
interests." K.H.O., supra, 161 N.J. at 348.
Having reviewed all of the arguments presented by Jill and
Charles in light of the record and law, we affirm substantially
for the reasons set forth in Judge Conte's and Judge DeLorenzo's
thorough and well-reasoned written opinions. We add a few
additional comments.
Jill and Charles each challenge certain factual findings of
the four prongs necessary for terminating their parental rights
under N.J.S.A. 30:4C-15.1(a). As previously summarized, Judge
Conte found clear and convincing evidence of all four prongs. On
hearing the motion for reconsideration, Judge DeLorenzo found no
basis to disturb Judge Conte's findings with respect to the first
three prongs. Further, the record amply supports Judge DeLorenzo's
finding that the Division clearly and convincingly showed that
termination of parental rights and adoption by the paternal
grandmother would not do more harm than good. In so holding,
Judge DeLorenzo credited and relied on the experts' testimony. We
have no reason to disturb that reliance.
Jill contends that on remand the court erred in failing to
consider her completion of ADV as evidence of changed circumstances
that support relief from the judgment. Domestic violence between
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Jill and Charles was not the only basis for terminating their
parental rights. Jill presents no evidence to show that she has
taken the necessary steps to protect her children from exposure
to the sex offender. Thus, a risk of harm to the children's
safety, health, and development still exists. Jill has not
demonstrated sufficient evidence of changed circumstances that
would justify vacating the judgment. Jill has also not shown that
termination of her parental rights is not in the children's best
interests.
Jill also argues that the trial court failed to consider a
United States Department of Health and Human Services and United
States Department of Justice directive (Directive) regarding the
applicability of the ADA to family court matters. There are
several flaws with this argument. First, Jill raised this argument
for the first time in her motion for reconsideration, rather than
at trial. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super.
455, 463 (App. Div.), certif. denied, 174 N.J. 544 (2002) (holding
that a party is not entitled to reconsideration based on new or
additional information if that information was available at the
time of trial). Moreover, we review the denial of reconsideration
under an abuse of discretion standard. Hous. Auth. of Morristown
v. Little, 135 N.J. 274, 283 (1994). We find no such abuse.
10 A-0233-15T3
Second, Jill never informed the trial court what disabilities
she suffered from. Indeed, there is no evidence in the record
that she has a recognized disability. Jill merely asserts that
the court failed to consider the Directive in making its findings
on the third prong of the best interests analysis. Jill does not,
however, explain which services should have been provided or how
the provided services failed to accommodate her disability. As
previously stated, the Division provided Jill with multiple
services aimed at reunification with the children, many of which
she did not use or attend. Accordingly, the trial court's finding
that the Division satisfied the third prong is supported by
substantial credible evidence in the record.
Judge Conte and Judge DeLorenzo both correctly analyzed the
relevant law and concluded that the Division had met the legal
requirements for a judgment of guardianship. See N.J.S.A. 30:4C-
15.1(a); K.H.O., supra, 161 N.J. at 347-48. All of the factual
findings are supported by substantial credible evidence. See
F.M., supra, 211 N.J. at 448-49. We discern no basis to disturb
Judge Conte's and Judge DeLorenzo's factual findings, and we agree
with their legal conclusions.
Affirmed.
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