DCPP VS. R.A.B. AND S.C.P. IN THE MATTER OF THE GUARDIANSHIP OF L.A.C.B. AND R.A.B., JR. (FG-07-208-15, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)(CONSOLIDATED)

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NOT FOR PUBLICATION WITHOUT THE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-3838-15T4
A-4496-15T4
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
R.A.B. and S.C.P.,
Defendants-Appellants.
———————————————————————————————
IN THE MATTER OF THE
GUARDIANSHIP OF L.A.C.B.
and R.A.B. JR., minors.
————————————————————————————————
Submitted April 27, 2017 – Decided June 2, 2017
Before Judges Lihotz, Hoffman and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-208-15.
Joseph R. Krakora, Public Defender, attorney
for appellant R.A.B. (Richard Foster,
Assistant Deputy Public Defender, on the
briefs).
Joseph R. Krakora, Public Defender, attorney
for appellant S.C.P. (Mark E. Kleiman,
Designated Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Mary
L. Harpster, Deputy Attorney General, on the
brief).
Joseph R. Krakora, Public Defender, Law
Guardian attorney for minors (Rachel E.
Seidman, Assistant Deputy Public Defender, on
the brief).
PER CURIAM
Defendants R.A.B. (Roger) and S.C.P. (Sally) appeal from the
Family Part's April 26, 2016 guardianship judgment terminating
their parental rights to L.A.C.B. (Lauren) and R.A.B., Jr.
(Raymond).1 In 2004, Roger pled guilty to a single count of sexual
assault, N.J.S.A. 2C:14-2(b), after he admitted to sexually
assaulting his minor cousin hundreds of times. In 2011, the
Chancery Division appointed a guardian for Sally because she
"adaptively functions at the level of a [nine-year-seven-month]
old individual." When the Division of Child Protection and
Permanency (Division) evaluated Sally, it found she lacked the
psychological capacity to care for her children independently,
even with additional training and therapy; in addition, she
insisted her children were safe around Roger because she refused
1
We use pseudonyms to protect the parties' privacy and for ease
of reference.
2 A-3838-15T4
to believe he ever sexually assaulted his cousin. Sally married
Roger after the Division obtained custody of the children but
before the trial court entered the guardianship judgment under
review.
On appeal, defendants individually argue the trial judge
erred in finding the Division satisfied the four prongs of the
best interests standard for termination of parental rights.
Following our review of the record, we reject these arguments and
affirm.
I.
We discern the following facts from the record. Roger was
ten years old when his female cousin was born on December 5, 1993.
After his 2003 arrest, Roger admitted to sexually assaulting the
cousin when she was as young as two years old. He continued to
sexually assault her until at least December 24, 2001, when he was
eighteen years old, and she was eight. He admitted he sexually
assaulted her "a couple hundred times."
In April 2004, Roger pled guilty to one count of second-
degree sexual assault, N.J.S.A. 2C:14-2(b), and received a three-
year prison term. The court also sentenced him to community
supervision for life, which required him to refrain from initiating
or attempting to initiate, establish, or maintain contact with any
3 A-3838-15T4
minor. The community supervision also required Roger to refrain
from residing with any minor without his parole officer's approval.
Prior to sentencing, psychologist Jeffrey C. Singer, Ph.D.,
examined Roger. Testing showed Roger has an I.Q. of seventy,
which corresponds to the second percentile. Dr. Singer noted,
"This quotient is associated with the 'Poor', or 'Borderline',
range of intellectual functioning." Roger "maintained his
innocence despite having pled guilty, under oath, calling into
question his understanding of his guilty plea." Dr. Singer
nevertheless found "insufficient psychological evidence generated
in the present evaluation to support a finding of sexual
compulsivity. Therefore, [Roger] does not appear eligible for
sentencing under the purview of the New Jersey Sex Offender Act."
In 2004, Virginia's Juvenile and Domestic Relations District
Court terminated Roger's parental rights of his daughter with
another woman. Virginia's Court of Appeals upheld the termination.
In January 2011, the Chancery Division ordered and adjudged
Sally as "an incapacitated person and . . . unfit and unable to
govern herself and manage her affairs with respect to medical
decisions that require informed consent, legal matters,
residential decisions, vocational decisions and educational
decisions but [Sally] shall be permitted to make socialization
4 A-3838-15T4
decisions independently." The court appointed the Bureau of
Guardianship Services as "guardian of the person of [Sally]."
The court relied on the expertise of psychologist Nicole J.
Livingston, Ph.D., to support its order. In her February 20, 2009
report, Dr. Livingston concluded Sally "functions in the
moderately retarded range," "reads at the second grade level, and
overall adaptively functions at the level of a [nine-year-seven-
month] old individual." Dr. Livingston therefore concluded Sally
"is able to perform some activities of daily living without
assistance, yet she lacks the ability to understand a legal
contract, budget money, travel independently, make change
independently, or provide medical informed consent."
In early September 2014, a Newark Beth Israel Medical Center
social worker reported to the Division that Sally had given birth
to Lauren. A Division investigator determined Roger was Lauren's
father and went to the hospital to interview Roger and Sally.
Roger explained the couple intended to go to his mother's house
after the hospital discharged Sally and Lauren. The Division put
Lauren on "social hold," preventing the hospital from discharging
Lauren to her parents, because the Division needed to complete
further assessments of both Roger and Sally.
Three days later, the Division met with Roger, Sally, Roger's
mother, and two other family members. Roger's mother and another
5 A-3838-15T4
family member offered to care for Lauren, but background checks
showed the Division had substantiated them for physical abuse, so
it did not accept their offers. Roger's background check showed
his conviction for sexually assaulting his cousin, and its
consequent restriction on residing with minors. When the
investigator called the Division of Developmental Disabilities,
she learned "a past psychological evaluation . . . determined that
[Sally] is unable to parent independently."
The Division concluded Lauren would "not be safe while in the
care of" Roger and Sally. It "established" Roger's and Sally's
abuse or neglect of Lauren, and the Chancery Division granted it
care, custody, and supervision of Lauren on October 1, 2014. The
court granted Sally supervised visitation. The court denied Roger
visitation because of his sexual assault conviction, but informed
him he could obtain visitation if he proved it was in Lauren's
best interest, pursuant to N.J.S.A. 9:2-4.1(a). The Division
placed Lauren in one of its resource homes.
In December 2014, psychologist Alison Strasser Winston,
Ph.D., evaluated Sally "for . . . her parenting capacity." Dr.
Winston concluded Sally "has significant cognitive deficits [that]
would interfere with her ability to provide [Lauren] with
appropriate care, supervision[,] and protections, and . . . she
is either minimizing or demonstrates no insight into the extent
6 A-3838-15T4
or impact of her cognitive limitations." "It is extremely
concerning that [Sally] has remained in a prolonged relationship
with a convicted sexual offender, and . . . she has indicated that
she has no qualms of leaving her infant daughter alone in [Roger's]
care in the event that [Lauren] returned to her care." "Although
[Sally] may benefit from addressing her poor judgment in the
context of psychotherapy, her cognitive deficits appear to be so
extensive that she would not be able to make any substantive
improvements in this domain within a time frame that would meet
her daughter's need for permanency."
Dr. Winston also found Sally "appears incapable of
independently caring for a child without significant support from
others." Sally "appears to have unrealistic expectations about
the requirements of childcare, and also appears to be
overestimating her cognitive abilities and her ability to meet the
demands of raising a child." She "would benefit from completing
parenting classes to provide her with more accurate and
comprehensive knowledge of child development and to enhance her
arsenal of effective disciplinary strategies in order to reduce
her level of risk to her daughter." Dr. Winston nevertheless
concluded, "[I]n light of her significant cognitive limitations,
[she] is unlikely to retain any of the materials that would be
7 A-3838-15T4
presented for a sustained period of time, and would not reduce her
level of risk to [Lauren] to any substantive degree."
Dr. Winston ultimately concluded, "[W]ithin a reasonable
degree of psychological certainty, [Sally] is currently incapable
of providing her daughter with a safe and stable environment at
the present time, nor is there any indication that she will be
able to do so within the foreseeable future." Dr. Winston
therefore recommended "other permanency planning for [Lauren]
besides reunification with her birth parents."
On January 7, 2015, the Chancery Division conducted a fact
finding trial regarding the Division's claim that Roger abused or
neglected Lauren. The court found Roger knew his sexual assault
conviction prevented him from having custody of Lauren, and he
also knew Sally was incapable of properly caring for her. Because
he failed to make other plans for her care, the court concluded
Roger put her at imminent risk, constituting abuse or neglect.
The same day, the court relieved the Division of its obligation
to provide reasonable efforts to reunify Lauren with Roger because
the Virginia court had previously involuntarily terminated his
parental rights to his older daughter. See N.J.S.A. 30:4C-11.3(c).
On January 14, 2015, Lauren began living with her foster
parent, who is committed to adopting her. On January 29, 2015,
the Chancery Division accepted the Division's permanency plan of
8 A-3838-15T4
termination of parental rights followed by adoption. On March 10,
2015, the Division filed a complaint for guardianship of Lauren.
One month before the Division filed its complaint, Sally
began a parent education program. After attending eight group
sessions and one individual session, Sally completed the parent
education program in May 2015.
Sally gave birth to Raymond in July 2015. The Division
learned of Raymond's birth the next day. Sally initially denied
Roger was Raymond's father, but eventually admitted the fact. The
court awarded the Division custody of Raymond on July 23, 2015.
As with Lauren, the court denied Roger visitation with Raymond and
relieved the Division of its obligation to provide reasonable
efforts to reunify Roger with Raymond.
The Division placed Raymond in a resource home willing to
adopt him. In August 2015, the Division added Raymond to Sally's
visits with Lauren. The Division contacted the family four times
to arrange a family team meeting, but they refused each time.
On September 23, 2015, the Chancery Division approved the
Division's plan to terminate Roger's and Sally's parental rights
to Raymond. The Division amended its guardianship complaint to
include Raymond on October 27, 2015. By January 19, 2016, Sally
had missed three consecutive visits with Lauren and Raymond, so
the visitation program terminated her participation.
9 A-3838-15T4
On January 26, 2016, Sally confirmed she had recently married
Roger. The same day, the court ordered Roger and Sally to undergo
evaluations. The court had previously ordered them to undergo
evaluations on October 28 and December 17, 2015. On February 4,
2016, Dr. Winston completed a bonding evaluation between Sally and
her two children. Dr. Winston found Lauren and Raymond had an
"insecure emotional attachment" to Sally. During the evaluation,
Sally "interacted to a somewhat minimal extent with her children.
She infrequently spoke to the children, and her statements to them
consisted of questions that the children could not answer, playing
'Peek-A-Boo,' babbling, and cooing with them." The children "did
not become distressed when [Sally] was briefly asked to leave the
room." The children appeared as comfortable with Dr. Winston as
with Sally, and they did "not appear to view [Sally] as a primary
provider of their needs for nurturance, guidance, safety, and
protection."
Dr. Winston also individually evaluated Sally. She found
Sally's cognitive limitations "would significantly impair her
ability to safely parent her children," noting she "demonstrates
a significant lack of knowledge regarding issues pertaining to
child development, appropriate care of children, relevant health
and safety issues, and parenting skills." Although Sally "is
clearly incapable of independently parenting her children, she
10 A-3838-15T4
demonstrates no insight into her parental incapacity;" her
"cognitive limitations have clearly impacted on her judgment as
she is unable to accurately ascertain which individuals could pose
a risk of harm to her young children and would consequently place
them at a significant risk if they were returned to her care."
Dr. Winston specifically noted Sally's belief Roger never sexually
assaulted his cousin.
Dr. Winston also evaluated Roger on February 4, 2016. She
stated Roger continued to deny he sexually assaulted his cousin,
and found Roger "lacks empathy and reverses parent-child roles."
She further noted, "He may be at elevated risk of engaging in
physically abusive behavior towards his children." Roger also
"expressed the belief that [Sally] is capable of caring for their
two young children on her own." Dr. Winston found this belief
"raises further concern about [Roger's] judgment and his ability
to provide the children with a safe and stable environment." She
also found:
It is imperative that [Roger] engage in
individual psychotherapy with a clinician
skilled in working with individuals accused
of engaging in sexually-offending behavior to
address his history of childhood sexual abuse,
the allegation that he had molested his
cousin, and the impact of these factors on his
ability to provide his children with a safe
and stable environment. It should be noted
that [Roger] appears to have longstanding
issues which have never been addressed in a
therapeutic context and will take a prolonged
11 A-3838-15T4
period of time to adequately address. It is
extremely unlikely that his compliance with
psychotherapy would result in meaningful
therapeutic progress within an appropriate
time frame to meet his children's need for
permanency.
Dr. Winston therefore recommended the Division and the court
view both Sally and Roger
as having failed to achieve permanency on
behalf of their children . . . . Neither
parent is currently capable of providing a
safe and stable environment for their
children, nor is there any indication that
either parent might be able to provide the
children with a safe and stable environment
in the foreseeable future. Moreover, neither
of the children has a strong and secure
emotional attachment to their biological
parents.
Dr. Winston consequently recommended the termination of
defendants' parental rights, so the children could be adopted.
On March 3, 2016, Dr. Winston evaluated Lauren's resource
parent. Dr. Winston noted Lauren had lived with the resource
parent since January 2015 and now views the resource parent as
"her psychological parent." The resource parent "has expressed
commitment to adopting [Lauren] and is able to provide the child
with a nurturing, safe[,] and stable environment, allowing her to
develop a sense of permanency." "Findings from the assessment of
attachment indicate that [Lauren] has a strong and secure emotional
attachment to her resource parent, who has been her primary
12 A-3838-15T4
caregiver for the past [fourteen] months." Dr. Winston ultimately
concluded:
In light of the facts that [Lauren] is
currently in a safe and stable environment and
has a strong attachment to [her resource
parent], it is [my] opinion . . ., within a
reasonable degree of psychological certainty,
that it would be in [Lauren's] best interests
for the [c]ourt to proceed with termination
of [Roger's and Sally's] parental rights
followed by adopted of [Lauren] by [her
resource parent].
At a pretrial hearing on March 24, 2016, two weeks before the
the guardianship trial, Roger's counsel informed the court that
Roger had missed the July 2015 appointment for his evaluation with
a defense expert for the termination proceeding. The court said
it would allow the Division to present its case as scheduled, and
Roger could present his expert when the Division presented its
plans for adoption on April 26, 2016.
On April 6, 7, and 26, 2016, the court conducted the trial.
On the second day of trial, Roger's counsel told the court that
an expert would evaluate Roger on April 12, 2016. Over the three
trial days, the Division presented three witnesses: Dr. Winston,
a Division caseworker, and a Division supervisor. The court found
them all credible. Defendants did not testify, present experts,
or introduce any documentary evidence into the record. Notably,
Roger declined to present any expert testimony. The Law Guardian
for the children supported terminating the parental rights of each
13 A-3838-15T4
parent. On the last day of trial, the court issued its oral
decision terminating the parental rights of both defendants. This
appeal followed.
II.
Our review of the Family Part judge's findings and decision
to terminate parental rights is limited. N.J. Div. of Youth &
Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We will not
reverse the family court's termination decision "when there is
substantial credible evidence in the record to support the court's
findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.
88, 104 (2008). "[B]ecause of the family courts' special
jurisdiction and expertise in family matters, appellate courts
should accord deference to family court factfinding." N.J. Div.
of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)
(quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).
However, we should not grant deference to the Family Part if
the judge's findings "went so wide of the mark that the judge was
clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L.,
191 N.J. 596, 605 (2007). The trial judge's legal conclusions,
and the application of those conclusions to the facts, are subject
to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
14 A-3838-15T4
Parents have a fundamental right to raise their biological
children. In re Guardianship of K.H.O., 161 N.J. 337, 346-47
(1999); see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct.
1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982) (stating that parents
have a liberty interest in raising their children). However,
these rights are not absolute; the State has a responsibility to
protect the welfare of children, which is achieved by the "best
interests of the child standard." K.H.O., supra, 161 N.J. at 347.
This standard is codified at N.J.S.A. 30:4C-15.1(a) and requires
the State to establish each of the following four elements by
clear and convincing evidence before parental rights may be
severed:
(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
15 A-3838-15T4
(4) Termination of parental rights will not
do more harm than good.
These four prongs "relate to and overlap with one another to
provide a comprehensive standard that identifies a child's best
interests." K.H.O., supra, 161 N.J. at 348. The considerations
involved are fact-sensitive and require particularized evidence
addressing the specific circumstances present in each case. N.J.
Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010).
The first prong of the best interest standard requires the
harm shown by the parental relationship "must be one that threatens
the child's health and will likely have continuing deleterious
effects on the child." K.H.O., supra, 161 N.J. at 352. This
prong may be triggered by an "accumulation of harms over time."
N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506
(2004). Generally, the proofs "focus on past abuse and neglect
and on the likelihood of it continuing." N.J. Div. of Youth &
Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.)
(quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)),
certif. denied, 192 N.J. 68 (2007). The child's harm may also
result from the parents' withdrawal of care, nurturing, and
solicitude for an extended period of time, In re Guardianship of
D.M.H., 161 N.J. 365, 379 (1999), or if the parents are unable to
protect and care for the child. N.J. Div. of Youth and Family
Servs. v. A.G., 344 N.J. Super. 418, 434-35 (App. Div. 2001),
16 A-3838-15T4
certif. denied, 171 N.J. 44 (2002). Furthermore, "[c]ourts need
not wait to act[,]" with respect to termination of parental rights,
"until [the] child is actually irreparably impaired by parental
inattention or neglect." D.M.H., supra, 161 N.J. at 383.
The second prong of the best-interest test relates to parental
unfitness. K.H.O., supra, 161 N.J. at 352. It requires the State
demonstrate the parent is "'unwilling or unable to eliminate the
harm' that has endangered the child's health and development," or
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." Ibid. (quoting N.J.S.A. 30:4C-15.1(a)(2)). The trial
court is required to determine whether it is "reasonably
foreseeable that the parents can cease to inflict harm upon the
children entrusted to their care." N.J. Div. of Youth & Family
Servs. v. A.W., 103 N.J. 591, 607 (1986).
Prong three of the best interests test contains two parts.
The first part requires the Division show it made "reasonable
efforts to provide services to help the parents correct the
circumstances that led to the child's placement outside the home."
M.M., supra, 189 N.J. at 281. These efforts should focus on
reunification of the family. K.H.O., supra, 161 N.J. at 354.
"Reasonable efforts" under the statue include:
17 A-3838-15T4
(1) consultation and cooperation with the
parent in developing a plan for appropriate
services;
(2) providing services that have been agreed
upon, to the family, in order to further the
goal of family reunification;
(3) informing the parent at appropriate
intervals of the child's progress,
development, and health; and
(4) facilitating appropriate visitation.
[N.J.S.A. 30:4C-15.1(c).]
Whether the Division acted appropriately must be decided "with
reference to the circumstances of the individual case before the
court, including the parent's active participation in the
reunification effort." D.M.H., supra, 161 N.J. at 390.
To satisfy the fourth prong, 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
court must determine "whether a child's interest will best be
served by completely terminating the child's relationship with
that parent." E.P., supra, 196 N.J. at 108. "The crux of the
fourth statutory subpart is the child's need for a permanent and
stable home, along with a defined parent-child relationship." N.J.
Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 226
(2013).
N.J.S.A. 9:2-4.1(a) nevertheless states:
18 A-3838-15T4
Notwithstanding any provision of law to the
contrary, a person convicted of sexual assault
under [N.J.S.A.] 2C:14-2 shall not be awarded
the custody of or visitation rights to any
minor child, including a minor child who was
born as a result of or was the victim of the
sexual assault, except upon a showing[,] by
clear and convincing evidence[,] that it is
in the best interest of the child for custody
or visitation rights to be awarded.
A. Roger
Roger argues the Division failed to prove any of the prongs
of the best-interest test because he did not harm Lauren or Raymond
when he failed to obtain custody of them pursuant to N.J.S.A. 9:2-
4.1(a). We disagree.
Roger first asserts his case is readily distinguishable from
D.M.H., supra, 161 N.J. at 379, in which our Supreme Court held,
"A parent's withdrawal of . . . solicitude, nurture, and care for
an extended period of time is in itself a harm that endangers the
health and development of the child." In D.M.H., the father
refused to acknowledge paternity or request custody while his
child lived with her homeless mother, who neglected her and abused
drugs. Id. at 379-80. The father also declined to protest when
the Division placed another of his children in foster care. Id.
at 380. "Outside of occasional visits, [the father] never provided
[his child] with any paternal care, nurture, or support." Ibid.
Contrary to Roger's argument, his inaction was similar to the
father's in D.M.H. He knew of Sally's pregnancy, and he knew the
19 A-3838-15T4
restrictions on his contact with minors. Nevertheless, he never
made any serious effort to obtain custody of either child, by
"showing[,] by clear and convincing evidence[,] that it is in the
best interest of the child for custody or visitation rights to be
awarded." N.J.S.A. 9:2-4.1(a). Moreover, the trial record is
devoid of any evidence he would have succeeded. The trial court
allowed him to undergo an evaluation to present a defense of his
parental rights, but he declined to attend the first evaluation,
and the record does not reflect he attended the second appointment.
Roger now argues he never properly requested a hearing because
his counsel was unconstitutionally ineffective. To establish
ineffective assistance of counsel, a defendant must satisfy the
two-pronged test enunciated by the United States Supreme Court in
the companion cases of Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and United States v. Cronic,
466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); see also
State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-
pronged test). To establish a prima facie case of ineffective
assistance of counsel, a defendant must prove:
First, . . . counsel's performance was
deficient. This requires showing that counsel
made errors so serious that counsel was not
functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient
performance prejudiced the defense. This
requires showing that counsel's errors were
20 A-3838-15T4
so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.
[Strickland, supra, 466 U.S. at 687, 104 S.
Ct. at 2064, 80 L. Ed. 2d at 693.]
These standards have been applied to guardianship matters. N.J.
Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307-08 (2007).
Roger had two attorneys during this case. Roger argues the
first was ineffective because the attorney never asked the court
for a hearing, pursuant to N.J.S.A. 9:2-4.1(a). Roger states his
first attorney failed to obtain the hearing because the attorney
was preoccupied with a federal criminal trial that could last two
to four months. His first attorney, however, stopped representing
him once the federal criminal trial began, and his second attorney
took over. Roger argues his second attorney did not understand
N.J.S.A. 9:2-4.1(a) because she said, "[A]s far as parole was
concerned my client could have contact with children if he was
supervised." He also notes his second attorney asked the Division
caseworker whether the Division ever scheduled a best interest
evaluation for Roger.
We are not convinced Roger received ineffective assistance
of counsel. His first attorney did not request a hearing pursuant
to N.J.S.A. 9:2-4.1(a), because Roger had not undergone an
evaluation to support a court order granting him custody of his
children. His first attorney scheduled an evaluation for him on
21 A-3838-15T4
July 27, 2015, but Roger failed to attend the appointment. His
second attorney scheduled another evaluation for him on April 12,
2016. The record does not show whether Roger went to this
evaluation because his second attorney did not introduce a report
or present the expert at trial. Most likely, either Roger did not
attend the evaluation, or the evaluation did not support granting
him custody or visitation. Both attorneys declined to ask for a
hearing seeking custody or visitation before they had an expert
to support the application. Neither attorney "made errors so
serious" that they were "not functioning as the 'counsel'
guaranteed by the Sixth Amendment." Strickland, supra, 466 U.S.
at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also B.R.,
supra, 192 N.J. at 307-08.
Roger next argues, "Dr. Winston was not an expert in sexual
offenders, and it was improper for her to render an opinion as to
the import of [Roger's] denials of guilt, as well as a conclusion
that the children would be at risk of sexual abuse if reunited
with their parents." The admissibility of expert testimony is
committed to the sound discretion of the trial court. Townsend
v. Pierre, 221 N.J. 36, 52 (2015). A trial court's grant or denial
of a motion to preclude expert testimony is entitled to deference
on appellate review. Ibid. The New Jersey Supreme Court has
instructed us to "apply [a] deferential approach to a trial court's
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decision to admit expert testimony, reviewing it against an abuse
of discretion standard." Id. at 53 (alteration in original)
(quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344,
371-72 (2011)).
N.J.R.E. 702 and 703 frame our analysis for determining the
admissibility of expert testimony. N.J.R.E. 702 identifies when
expert testimony is permissible and requires the experts to be
qualified in their respective fields. N.J.R.E. 703 addresses the
foundation for expert testimony. Expert opinions must "be grounded
in 'facts or data derived from (1) the expert's personal
observations, or (2) evidence admitted at the trial, or (3) data
relied upon by the expert which is not necessarily admissible in
evidence but which is the type of data normally relied upon by
experts.'" Townsend, supra, 221 N.J. at 53 (quoting Polzo v.
Cnty. of Essex, 196 N.J. 569, 583 (2008)).
"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . .
which forbids the admission into evidence of an expert's
conclusions that are not supported by factual evidence or other
data.'" Id. at 53-54 (alteration in original) (quoting Polzo,
supra, 196 N.J. at 583). Therefore, an expert is required 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)). The net
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opinion rule directs "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.'" Id. at 55 (quoting Landrigan v. Celotex Corp., 127
N.J. 404, 417 (1992)). In short, the net opinion rule is "a
prohibition against speculative testimony." Harte v. Hand, 433
N.J. Super. 457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer,
301 N.J. Super. 563, 580 (App. Div. 1997), certif. denied, 154
N.J. 607 (1998)).
Dr. Winston's curriculum vitae states the New Jersey Child
Abuse Training Institute granted her an "Advanced Studies in Child
Maltreatment Certificate with a specialization in Child Sexual
Abuse." Fordham University granted her a Ph.D. in clinical
psychology, and she is a licensed psychologist in New Jersey and
New York. Dr. Winston met with Roger and was qualified to opine
on the psychological import of Roger's denial of guilt and on
whether he posed a risk to his children. See N.J.R.E. 702, 703.
Lastly, Roger argues the State of Virginia terminated his
parental rights under a statute that did not require it to provide
him with reasonable services, so the trial court should not have
relieved the Division of its obligation to provide reasonable
efforts to reunify him with his children. N.J.S.A. 30:4C-11.3(c)
states:
24 A-3838-15T4
In any case in which the Division of Child
Protection and Permanency accepts a child in
care or custody, including placement, the
division shall not be required to provide
reasonable efforts to reunify the child with
a parent if a court of competent jurisdiction
has determined that . . . [t]he rights of the
parent to another of the parent’s children
have been involuntarily terminated.
N.J.S.A. 30:4C-11.3(c) does not limit its application to parents
who had their parental rights previously terminated in accordance
with New Jersey law or public policy, and we decline to read this
qualification into the statute. For this reason, we also reject
Roger's argument that his counsel was ineffective for failing to
raise this argument at trial.
Although ultimately not essential to our decision, we
previously granted Roger's motion to supplement the record with a
psychologist's December 2, 2016 report finding him unlikely to
"commit another sexual offense." Obviously, this report was not
before the trial court. Moreover, Dr. Winston's conclusions did
not turn on whether Roger had a likelihood of recidivism as a
sexual offender. The report also fails to show Lauren's or
Raymond's best interests require "custody or visitation to be
awarded." N.J.S.A. 9:2-4.1(a).2
2
The Division also filed motions to supplement the record with
an additional report of its own and a Family Part order regarding
Roger and Sally's third child. We deny these motions because the
additional report and court order are unnecessary to our
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B. Sally
A court's decision to terminate a parent's rights must rest
on the child's best interest and the child's need for protection
and permanency; the court's decision must not be skewed by the
sympathy for the blamelessness of a parent facing circumstances
he or she has not caused. A.G., supra, 344 N.J. Super. at 438-
39. "[T]o allow the provisions of the [LAD] and ADA to constitute
a defense to a termination proceeding would improperly elevate the
rights of the parent above those of the child." Id. at 442.
"Reliance upon the LAD [and the ADA] would change the focus of the
termination case from the best interests of the child to the rights
of the parent." Id. at 441.
Sally first argues, "In the case at bar, the trial court
essentially found that [she] 'harmed' both children by virtue of
her being deemed incapacitated in 2011; thus, the court believed
[she] was incapable of caring for herself or her children." The
record does not support this contention. The Division individually
and separately evaluated Sally twice: once regarding Lauren, and
again regarding both Lauren and Raymond. Both times, Dr. Winston
found Sally psychologically incapable of independently caring for
children while refusing to recognize her cognitive limitations.
determination of this case. See Liberty Surplus Ins. Corp. v.
Nowell Amoroso, P.A., 189 N.J. 436, 452-53 (2007).
26 A-3838-15T4
Further, she insisted she would leave her children with Roger, in
spite of his prior admission to sexually assaulting his cousin
hundreds of times. Sally's mental disability, her refusal to
acknowledge her limitations, and her obstinate insistence on
Roger's innocence, all "threaten[ed]" her children's health and
would "likely have continuing deleterious effects on" them. See
K.H.O., supra, 161 N.J. at 352.
Sally next argues, "[T]he court disregarded evidence . . .
demonstrating [her] desire and potential for developing the skills
necessary to care for her children with proper support . . . ."
Again, the record does not support this contention. Dr. Winston
testified Sally "remains incapable of providing a safe and stable
environment for her children[,] [a]nd . . . she would not be able
to remediate those concerns within a time frame that would meet
the children's need for permanency." The trial court found Dr.
Winston credible, and Sally did not present any evidence to the
contrary.
Sally also contends the Division "failed to provide [her]
with an individualized assessment or reasonable accommodations for
services under the ADA in light of her cognitive limitations,
which have necessitated the appointment of a legal guardian to
assist her with certain decisions." She cites PGA Tour Inc. v.
Martin, 532 U.S. 661, 690, 121 S. Ct. 1879, 1897, 149 L. Ed. 2d
27 A-3838-15T4
904, 928 (2001), for the proposition that the ADA requires "the
need of a disabled person be evaluated on an individual basis."
Although this court has explicitly rejected the ADA or LAD as
defenses to the termination of a parent's rights, A.G., supra, 344
N.J. Super. at 442, the record shows the Division individually
evaluated Sally's ability to parent her children twice. As already
noted, the Division found her unfit and beyond its help. We
therefore reject Sally's last argument that "the court's
determination on the fourth prong was 'wide of the mark' and should
be reversed in light of the Division's failure to offer appropriate
remedial services."
Any arguments not specifically addressed in this opinion lack
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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