September 3, 2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
B.G. and V.M., Defendants-Appellants IN THE MATTER OF J.M.G., a minor NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
V.M. and B.G., Defendants-Appellants IN THE MATTER OF THE GUARDIANSHIP OF J.M.G., a minor
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FN-07-572-06 and FG-07-106-12.
Joseph E. Krakora, Public Defender, attorney for appellant B.G. in A-0355-11 and A-4001-11 (Laura M. Kalik, Designated Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for appellant V.M. in A-0356-11 and A-3999-11 (Catherine Reid, Designated Counsel, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eleanor M. Armstrong, Deputy Attorney General, on the briefs).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.M.G. in A-0355-11 and A-0356-11 (Jeffrey R. Jablonski, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.M.G. in A-3999-11 and A-4001-11 (Randi Mandelbaum and Sarah Koloski, Designated Counsel, on the brief).
Before Judges Messano, Lihotz and Ostrer.
On appeal after remand, defendants V.M. and B.G. challenge the judgment of guardianship that terminated their parental rights to their daughter J.M.G., born in 2006. They separately challenge orders entered by the trial court while the case was on the abuse and neglect docket. We consider the guardianship appeal together with the abuse-and-neglect appeal for the limited purpose of issuing a single opinion.
In July 2009, we affirmed the Family Part's finding that V.M. had abused or neglected newborn J.M.G., but reversed the same finding as to B.G. N.J. Div. of Youth & Family Servs. v. V.M. & B.G. (V.M. I), 408 N.J.Super. 222, 225 (App. Div.), certif. denied, 200 N.J. 505, 201 N.J. 272 (2009), cert. denied, U.S., 130 S.Ct. 3502, 177 L.Ed.2d 1095, U.S., 130 S.Ct. 3537, 177 L.Ed.2d 1095 (2010). In August 2010, we reversed a judgment terminating V.M.'s and B.G.'s parental rights, finding the Division had not proven the second and fourth prongs of the best interests of the child test, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. V.M. & B.G. (V.M. II), Nos. A-2649-08, A-3024-08, A-3336-08, A-3342-08 (App. Div. Aug. 6, 2010) (slip op. at 78, 90). We remanded the case to the Family Part for further proceedings. Id. at 94.
On remand, the Family Part dismissed the guardianship litigation and returned the matter to the abuse and neglect docket. Following a plenary hearing to address J.M.G.'s ability to participate in therapeutic visitation, Judge Stephen J. Bernstein directed V.M. and B.G. to engage in psychological therapy and directed the Division to intensify its efforts to prepare J.M.G. for visitation. However, visitation was stayed after only one session, due to the extreme anxiety and regressive behaviors that it engendered in the child. Thereafter, the court conducted an extensive permanency hearing, approved the Division's permanency plan of termination of parental rights, and the matter was once again placed on the guardianship docket. Following a guardianship trial, the judge entered judgment terminating V.M.'s and B.G.'s parental rights, finding the Division had established each prong of the best interests test by clear and convincing evidence.
In the guardianship appeal, defendants argue that the court erred by finding that the Division had met its burden of proof under the second and fourth prongs of the best interests test. They also argue that the court erred by refusing to reevaluate the evidence under the first and third prongs. V.M. contends that the court applied the wrong legal standards at the guardianship trial and failed to require the Division to prove its case by clear and convincing evidence. In the Title 9 appeal, B.G. contends the Division lacked the requisite care and custody of J.M.G. to support a guardianship action and in any event, the Division was collaterally estopped from filing a second guardianship complaint, and barred by principles of double jeopardy. Both defendants assert that they received ineffective assistance of counsel at trial.
After considering defendants' arguments in light of the record and applicable legal standards, we affirm.
We shall not recount the factual and procedural background of our July 2009 and August 2010 decisions, which can be found in V.M. I and V.M. II. We focus on the evidence presented at two plenary hearings, and the guardianship trial, and other proceedings not discussed in our two prior opinions.
Although we reversed the finding of abuse or neglect by B.G. in V.M. I, we did not order restoration of custody. 408 N.J.Super. at 252. As Judge Carchman observed in his concurring opinion:
Although the judge erred in entering a finding of abuse or neglect against B.G., he correctly denied B.G.'s request to assume custody immediately following the May 24 hearing. Dr. Jacoby's report questioned B.G.'s reliability and his fitness to assume parental responsibility. Frommer's observations in the hospital also gave rise to concern because B.G. denied that V.M. had ever received psychiatric care. Moreover, on the morning of the April 20 hearing, B.G. attempted to hide his identity and falsely said he did not know Frommer. His failure to attend the hearing left the judge little choice but to place the child in the custody of [the Division].
[V.M. I, supra, 408 N.J.Super. at 251.]
Judge Carchman noted that B.G. then failed to comply with the trial court's conditions for reunification. Id. at 252.
While the appeal was pending in V.M. II, B.G. sought an order for increased visitation or a limited remand to consider his application. We granted a limited remand. In response, the trial court suspended visitation — temporarily in September 2009 and permanently in December 2009, after conducting a plenary hearing. The court, by Judge John J. Callahan, received evidence that V.M. had engaged in bizarre behavior, including false allegations to the police about the foster parents; B.G. acted inappropriately during visitation; and J.M.G. experienced anxiety and other negative reactions to the visits. In February 2010, we then denied B.G.'s motion to vacate Judge Callahan's order; and the Supreme Court denied leave to appeal.
In V.M. II, we denied B.G.'s request to order the remand be heard by a different judge, stating that defendants should first present a motion for recusal to that judge. On remand, the recusal motion was filed and granted, and the matter was transferred to Judge Bernstein. He dismissed the guardianship case and returned the matter to the FN docket. B.G. filed motions for return of the child pursuant to N.J.S.A. 9:6-8.32, and, alternatively, for visitation.
In a September 22, 2010 order, the court denied the motion to restore custody, but granted the motion for visitation; directed the Division to set up therapeutic supervised visitation within two weeks; and denied the Law Guardian's and the Division's motion to stay therapeutic visitation. J.M.G. at that point was four-and-a-half years old. She had not visited with her parents in a year; had never lived with her parents; and had lived with the same foster parents since she was one year old. The court appointed Dr. Elizabeth Smith to conduct therapeutic visitation, and the Division retained Dr. Elizabeth Groisser to provide J.M.G. play therapy.
The Law Guardian obtained a stay of visitation from this court, pending reports from the experts regarding the impact of renewed visitation. The Supreme Court granted leave to appeal, but denied motions to vacate the stay of visitation by order entered December 10, 2010. The Court stayed visitation pending further order of the Family Part. The Court summarily remanded the case to the Family Part, and required defendants to submit renewed visitation motions following new reports, which the trial court was ordered to consider on an expedited basis.
In December 2010, following the Supreme Court's order, Judge Bernstein decided to hold a plenary hearing to address J.M.G.'s ability to participate in therapeutic visitation. B.G. had filed a motion for return of the child, and a motion for expedited therapeutic visitation. V.M. apparently joined in the motion for return.
During oral argument, B.G. was represented by two attorneys. One asserted B.G. was entitled to return of the child, as there was no finding of abuse or neglect against him and termination of his parental rights was reversed. Co-counsel, however, agreed that "the Court is properly focused on . . . moving forward with therapeutic visitation." He stated, "I'm not arguing a motion for return, " and the Division "is probably on reasonably solid ground in not returning the child[.]" The Division argued the Supreme Court's order affirmed the Division's refusal to return custody to B.G. The Division also argued, "The remand never said dismiss the guardianship complaint."
Judge Bernstein declined to grant the motion for the immediate return of the child. He reserved decision until the conclusion of a hearing on resuming visitation. The court also denied the Division's proposed permanency plan of termination of parental rights followed by foster home adoption. Instead, Judge Bernstein ordered continued therapy for and evaluations of J.M.G. in anticipation of possible reunification.
The Visitation Hearing
At a four-day plenary hearing in January and February 2011, Judge Bernstein heard from seven mental health professionals. Smith testified, based on her observations and meetings, that J.M.G. was a happy, well-adjusted child with a strong connection to her foster parents; defendants were convinced, however, she was unhappy and resisted the suggestion that J.M.G. might find it difficult to resume visitation. The foster parents reported that J.M.G. experienced anxiety, aggression, toileting problems, and sleep disturbances following meetings at which Smith discussed resumption of visitation with her parents.
Groisser conducted twelve play therapy sessions with J.M.G., who Groisser found to be an engaging, sweet, and strong-minded child. J.M.G. told Groisser, "I don't want to see them because I want to stay with my, the mommy and daddy I live with now." Groisser explained J.M.G. was fragile, and experienced confusing feelings about stability, identity, self-esteem and safety. The child had difficulty sleeping and had bad dreams. Groisser believed J.M.G. was not prepared to resume visitation, as she expressed fear and anxiety that she would be taken away from her foster home.
Dr. Rachel Jewelewicz-Nelson testified on behalf of the Law Guardian. After meeting with defendants, the foster parents, and J.M.G., Jewelewicz-Nelson opined it would be contrary to J.M.G.'s best interests to have contact with defendants. She stated J.M.G. was at risk of developing multiple psychological and psychiatric problems. She also opined V.M. and B.G. did not recognize J.M.G.'s anxiety. B.G. ascribed false motives to the Division, and asserted V.M. did not suffer from mental health problems that would interfere with her parenting. V.M. believed J.M.G. was doing poorly and pining for defendants. Jewelewicz-Nelson diagnosed both as suffering from personality disorders — B.G. not as impaired as V.M. — and doubted psychotherapy would lead to positive results, going so far as to say the situation was hopeless.
Dr. Anthony D'Urso, who testified on behalf of the Division, evaluated defendants and diagnosed V.M. with post-traumatic stress disorder (PTSD) by history and with "dependent and schizotypal features." D'Urso concluded B.G.'s denial of V.M.'s psychiatric symptoms warranted removal. He found that B.G. had no thought disorder, confusion, or traumatic response, but that he did display symptoms of intolerance, aggression, conduct humiliating to others, and concern over his own self-worth. He diagnosed B.G. with schizotypal personality disorder NOS and dependent personality disorder NOS. He believed that B.G. was not yet ready for visitation because he was clearly aligned with V.M. and might not step in if he saw something occurring that was emotionally harmful to J.M.G. Like V.M., B.G. would benefit from treatment to address these problems. If the parents were in treatment and J.M.G. were ready for visitation, D'Urso saw no problem with it going forward.
Defendants called three experts: Dr. Arnaldo Apolito, a psychiatrist; and Dr. Obenetta Tamagnini and Dr. Melissa Rivera-Morano, psychologists. Apolito found that V.M. exhibited no sign of psychosis or other thought disorder. He diagnosed her as having residual PTSD and possibly histrionic personality disorder, neither of which would prohibit her from visiting with J.M.G. Apolito found that B.G. had no mental illness and there was no indication he would be harmful to J.M.G. He advocated J.M.G.'s visitation with B.G. as soon as possible. Apolito opined that children J.M.G.'s age are resilient. He believed J.M.G. should be told that V.M. and B.G. are her biological parents and then be given substantial counseling.
Tamagnini interviewed J.M.G., who appeared pleasant, talkative, and bright. When asked to draw a picture of her "real" parents, J.M.G. drew her foster parents with her. She displayed no anxiety when doing this, nor at any other time during the interview. She told Tamagnini that she did not want to see her other parents. Tamagnini was unable to say whether J.M.G. was a fragile child, and offered no opinion as to how to re-acquaint J.M.G. with her birth parents.
Rivera-Morano evaluated V.M. and B.G. based on testing and clinical interviews, though she suggested both were faking some responses. Rivera-Morano did not find V.M. to be psychotic or delusional, and diagnosed V.M. with PTSD and a paranoid personality feature with the presence of pathological suspicion. Both of these disorders could be addressed by appropriate treatment. Rivera-Morano testified that B.G. did not meet the criteria for any psychiatric or psychological disorder, outside of an adjustment disorder resulting from J.M.G.'s removal. He displayed appropriate parenting knowledge and expressed a willingness to address J.M.G.'s needs. Rivera-Morano did not believe that V.M. posed a risk of harm to J.M.G. within the context of a therapeutic visit, which should occur twice a week. With progress, she contemplated overnight visits outside a therapeutic setting.
Judge Bernstein acknowledged that defendants' parental rights included the right of visitation, which should be revoked where it clearly and convincingly appeared it would cause physical or emotional trauma to the child. After evaluating each expert's testimony, and the variation in their opinions, he concluded there was a consensus that defendants had various deficiencies. He concluded therapy should occur before commencing therapeutic visitation to assure successful visits. He directed defendants to engage in psychological therapy and to cooperate with Smith in preparing for visitation. If progress were not made, the defendants would have the opportunity to apply to the court for the assignment of new therapists. The judge directed that Groisser continue play therapy, and Smith continue her therapy, with the goal of commencing visitation in the near future.
On March 23, 2011, after reviewing reports from Smith and Groisser, the court concluded therapeutic visitation should begin and ordered the Division to schedule it. Eight days later, J.M.G. visited with defendants, supervised by Smith.
At a compliance hearing on May 19, 2011, the court considered reports from Smith and Groisser, who (1) reported that J.M.G. suffered an extremely negative reaction to the visitation, and (2) strongly recommended against further visitation. Judge Bernstein decided not to order additional visitation; he ordered continued therapy with Groisser to prepare J.M.G. for possible renewed visitation; and ordered a permanency hearing on whether the Division had exhausted efforts to reinstate visitation.
After addressing preliminary and evidentiary issues on July 15, 2011, Judge Bernstein conducted a permanency hearing over four days in July and August. Witnesses testified about the preparations for visitation on March 31, and its aftermath.
Groisser testified that she believed J.M.G. was ready to participate in therapeutic visitation on March 31, 2011. At a meeting before the visitation, J.M.G. told Groisser she acknowledged she was going to see "mommy" and "Daddy B." and said she was "brave" to do so. Groisser was told the visit went well, but it had a significant psychological impact. The foster parents told Groisser that after the visit, the child hid, cried, was inconsolable, and had temper tantrums. Further, J.M.G. exhibited severely regressed behaviors and encopresis, which was documented by J.M.G.'s school records. Based on this information, Groisser recommended that visitation be stopped. However, Groisser continued to work with J.M.G. on visitation preparation.
After June 9, J.M.G.'s anxiety heightened. She had an increase in nightmares and her eating became more problematic. She experienced separation anxiety and became upset and clingy when either foster parent left for work. She screamed in the middle of the night, "Help me" and "Don't let them take me." Groisser believed the foster mother was supportive of visitation, and was not adversely influencing J.M.G. Groisser believed that another therapeutic visit would be detrimental to J.M.G. and cause her enduring harm. The child was starting to distrust her foster parents and to think they did not want her. She frequently asked them "We're a family — we're a family, Right? You me, mommy, daddy, we're a family, right?"
Smith testified that she thought J.M.G.'s anxiety might dissipate after the March 31 visit. She believed it was important to try visitation, although V.M. and B.G. were still having difficulty understanding J.M.G.'s attachment to her foster parents. Although J.M.G. was upset and distressed when Smith saw her on March 30, 2011, Smith decided to proceed with the visit. The next day, J.M.G. did not resist the visit, which went well. J.M.G. smiled and played; and V.M. and B.G. acted appropriately. Smith stated that V.M. and B.G. followed the guidelines she had established. J.M.G. interacted particularly well with B.G., who was warm and related to her in a comfortable manner. However, when the visitation time ended, J.M.G. simply took a doll that her birth parents had brought her and walked out abruptly, without saying goodbye.
Smith explained that typically in supervised visitation, if there is a problem it does not appear until the child gets home. For that reason, she wanted to wait two weeks to see how J.M.G. behaved before scheduling another visit. As time went on, Smith learned that J.M.G. was not sleeping, had nightmares, had bowel accidents, and exhibited high separation anxiety from her foster parents. Describing these reactions as "extreme, " Smith decided to suspend future visitations to give J.M.G. a chance to recover.
In June, Groisser told Smith that J.M.G. had been talking about a doll house defendants gave her. Smith thought this was a good sign that they could introduce the subject of her birth parents again. To that end, Smith suggested that V.M. and B.G. write a card to J.M.G. with a nice message and photograph inside. Smith scheduled a session with J.M.G. for July 8, 2011. J.M.G. was carried into the session in her foster mother's arms; J.M.G. sucked her thumb, acted like a much younger child, and would not talk. Despite efforts by Smith and the foster mother, J.M.G. refused to look at the card and would not speak.
Noting J.M.G.'s regression, Smith worried that she might have pushed the child too hard. She noted that during the previous fall, J.M.G. appeared as a typical, outgoing, well cared-for little girl who talked about her dogs and her school. When Smith testified, J.M.G. had developed an adjustment disorder, a behavior disorder and anxiety. Smith asserted that J.M.G. perceived V.M. and B.G. threatened J.M.G.'s relationship with her foster parents. Smith was emphatic that the foster mother was supportive of visitation and found no evidence that J.M.G. was "programmed" to oppose visitation. Smith believed the visitation process was harming J.M.G., and should cease. She did not base her recommendation on anything B.G. or V.M. had done, but on the impact of the visits on J.M.G.
Patrice Amatrudi, a Division case worker involved with the case since April 2007, testified that J.M.G. sees an eye doctor and wears eyeglasses for corrective vision. J.M.G. was being treated for eating and swallowing issues, which worsened when the court considered visitation after the remand. Amatrudi testified that since December 2010, the Division provided J.M.G. with individual therapy, family visitation therapy, a daycare subsidy, classes and activities, and payments for foster care. Amatrudi stated the Division's provision of a Ph.D-level therapist for a child J.M.G.'s age was unusual, but reflective of the Division's efforts.
In response to the court's order of February 2011, Amatrudi retained Eileen A. Kohutis, Ph.D, with experience in PTSD, to treat V.M. She also retained Daniel Bromberg, Ph.D, to treat B.G. In May, defendants advised the court that they wanted the Division to obtain new therapists. Accordingly, Amatrudi contracted with Dr. Radha Bhatia to treat V.M. and Dr. Brett A. Biller to treat B.G., but defendants did not commence therapy with them.
Defendants refused to permit Amatrudi to meet with them at their home. Amatrudi also expressed concern about B.G.'s refusal to provide the Division with information about his businesses and financial records, particularly because B.G.'s proposed reunification plan entailed hiring a nanny to assist V.M.
Amatrudi stated that the foster parents were committed to adopting J.M.G. and that they currently met all of the child's needs. She believed that it would be appropriate to proceed to termination of parental rights because J.M.G. was now five years old, had been in placement her entire life, and needed permanency.
Marc Cantillon testified as a psychiatric expert on behalf of defendants. He stated that he had been seeing V.M. for almost five years. Her treatment involved a combination of psychotherapy and medication, and she was very stable. A mental status examination conducted on July 5, 2011, revealed that V.M. was experiencing sadness and anxiety, but was still functioning well. She demonstrated no disordered thinking, no hallucinations, and no psychosis. V.M.'s diagnosis remained PTSD.
Cantillon stated that V.M.'s PTSD did not impact her functioning and would not impair her ability to parent a child. V.M. had the necessary skills and empathy to understand the emotional and physical needs of a five-year-old. She was appropriate and realistic, and her self-image was improving. Although V.M. used inappropriate terms for the foster parents in the past, she recognized that they had a bond with J.M.G.
Cantillon believed that V.M.'s prognosis was good. She was currently taking Depakote, a mood stabilizer, for treatment of anxiety and agitation, and Seroquel, an anti-psychotic and tranquilizer, for treatment of anxiety. In the past, she had also taken Haldol, Geodon, and Zyprexa. The medications enhanced V.M.'s general functioning ability. Cantillon testified that B.G. had no psychiatric conditions and no diagnosis, and was able to parent a five-year-old.
On cross-examination, Cantillon was asked to address numerous inconsistencies in the documents that he produced for the court, and his responses to questions were confusing and evasive. Cantillon stated that he saw V.M. on a monthly basis since 2006. He then qualified his statement as meaning that he had some contact with her every month. Even though the records showed five-month gaps in treatment, he believed that he spoke to her on the telephone during those periods. He later admitted that he did not see V.M. from September 2009 to February 2010, because she "was feeling very bad." During that time, V.M. was depressed and relatively unstable; she made telephone calls representing herself as a CIA agent and made false reports to the police.
Cantillon agreed that V.M. required on-going psychiatric care. She experienced periods of worsened anxiety symptoms, and at times she could be described as suffering from a major depressive disorder. She also had mood swings that could be described as bipolar or manic depression.
Cantillon was unclear as to when and if he provided B.G. with treatment. He stated that he wrote B.G. a prescription for Sonata for sleeplessness, but that he did not consider that treatment. In April 2007, he wrote B.G. prescriptions for Seroquel and Mirtazapine, a mood stabilizer. Cantillon explained that these were V.M.'s prescriptions but he apparently wrote them in B.G.'s name so that B.G.'s insurance would pay for them. He later changed that testimony to say that he did write the prescriptions for B.G., but they were only intended as sleep medications. He also identified a prescription for Ambien that he wrote for B.G., which included a diagnosis code for a major depressive disorder.
Judge Bernstein determined that the Division's permanency plan of termination of parental rights followed by adoption was appropriate and reasonable under the circumstances. Although defendants had cooperated and behaved appropriately at the March therapeutic visitation, the aftermath for the child was dramatically negative. The judge found that Smith and Groisser "did a yeoman['s] job" in working with J.M.G. and preparing her for visitation. He noted that they had shared his thought that perhaps J.M.G. was more fearful of what visitation might be like than the actual visitation itself and that she might calm down after a successful visit. Unfortunately, the opposite occurred. J.M.G. developed regressive behaviors that Smith and Groisser specifically related to the visitation. They saw "what appeared to be an extremely stable outgoing child change to be a much more fragile situation."
The judge commended defendants for making progress in learning about child development and bonding. He nevertheless found that the type of therapy they had been receiving was inadequate to address the problems that they faced. He also noted that they were unwilling to engage in therapy with the therapists provided by the Division. Judge Bernstein was especially critical of Cantillon's testimony, observing that there were serious questions regarding his ability to keep records, his reports were not credible and his treatment was haphazard.
Judge Bernstein stated that he had been presented with detailed information from two competent doctors — Smith and Groisser — who said that visitation could not proceed then or in the near future. Meanwhile, J.M.G. was getting older.
[W]e have to step back and . . . try to look at this through the eyes of a 5 year old. You have a 5 year old who is . . . in a foster home. Has been in that foster home for . . . about 4 and a half years now. Knows her foster parents to be her only parents. And despite 4 and a half years with them those foster parents can not honestly tell her that, yes, we are a family and you will be able to stay with us. And . . . no matter how many times [J.M.G.] may ask, no matter how much she wants to know that she's part of this family, they can never honestly tell her that, yes, you are part of the family. You will always live with us. You . . . have a stable home here, this is your home.
The child is now over 5. The reason we have permanency guidelines, . . . that we don't keep kids in foster homes in limbo for long periods of time is because we develop this situation. This child is saying, . . . where am I? Where am I going to be?
Judge Bernstein stated, "The longer we wait the worse it gets." He found that the insecurity surrounding J.M.G.'s permanency was not fair to her and amounted to "punishment to a child that didn't create this situation." The judge found that J.M.G. had significantly regressed since efforts began to commence therapeutic visitation.
He concluded that the Division's proposed plan of guardianship and termination of parental rights was appropriate and reasonable, and "the only viable plan . . . at this point." Proceeding further with the Title 9 litigation would not be helpful to J.M.G., "or would merely create more harm [.]"
The judge entered a permanency order on August 11, 2011, finding that termination of parental rights followed by foster home adoption was "appropriate and acceptable." He found it was not, and would not, be safe to return J.M.G. to her parents' home in the foreseeable future because:
Mother continues to experience mental health issues that pose a significant risk to the child. Father does not fully understand the mental health issues of the mother and continues to present a reunification plan as a couple. Neither parent is engaged in appropriate therapy. Court found that the child has significantly regressed since the process of starting therapeutic visitation commenced.
He found the Division made reasonable efforts "to finalize the permanent plan, including reunification where appropriate[.]" These consisted of "multiple referrals for individual therapy, psychological and psychiatric evaluations, referral for therapeutic visitation, and play therapy for the child[.]" The order provided that J.M.G. would be continued in placement outside the home. It noted that the Division filed its guardianship complaint that day. By a separate order the same day, the court dismissed the Title 9 litigation, as the complaint for termination of parental rights had been filed.
B.G.'s and V.M.'s appeal from the August 11, 2011 orders followed. We later denied the Division's motion to dismiss the Title 9 appeals.
In the meantime, the court proceeded with the guardianship case. Before trial, defendants sought restoration of visitation and a bonding evaluation. They relied on the opinion of Dr. Susan Esquilin, who asserted that visitation was terminated prematurely. In November 2011, the court denied immediate relief and ordered a status report from Groisser regarding J.M.G.'s therapy. Groisser responded in a December 2, 2011 report that reinstating visitation would be extremely detrimental to J.M.G. In response, counsel for both defendants stated that there would be no further applications on the issue of visitation and bonding evaluations.
The parties agreed that the upcoming guardianship trial record would include the record of the 2009 hearing that led to suspension of visitation, and the prior hearings before Judge Bernstein. The deputy attorney general explained it would "avoid everybody having to re-present" evidence from those hearings. Counsel initially also stipulated that the Division had established prong three of the best interests test by clear and convincing evidence as of December 2008, but then, in defendants' presence, stipulated that prong three was met through the date of trial. Judge Bernstein also determined, based on the law of the case doctrine, that prong one had been met, and the trial would proceed on prongs two and four.
The Guardianship Trial
Trial was held over five days in February and March 2012. The Division introduced voluminous documentary evidence of V.M.'s psychiatric treatment history, including records of multiple hospitalizations. V.M. entered Overlook Hospital in 2007 for depression. Two years later, she was admitted again after she exhibited grossly delusional thoughts, including claims she was the biological child of John F. Kennedy, and her neighbors were killing their children. B.G. told hospital staff that he "had no idea there was a problem going on with the wife." V.M. was diagnosed as suffering from schizoaffective disorder.
Police escorted V.M. in handcuffs to Overlook on October 8, 2009. V.M. had called police headquarters claiming she was from the CIA, her mother was Marilyn Monroe, V.M. was an assassin, and she was going to kill someone. She was extremely agitated and threatening. V.M. was diagnosed as suffering from schizoaffective disorder and delusional disorder. She was involuntarily committed to East Mountain Hospital, where she remained for almost two weeks. After she was stabilized on multiple psychotropic medicines, she was discharged with a diagnosis of schizoaffective disorder, probable PTSD, and probable fixed delusional system.
According to records of services that V.M. and B.G. received in 2007, V.M. repeatedly made bizarre, delusional statements. She claimed she had relationships with famous people; and her Division case worker had called her ten years earlier and vowed to take away any child in her custody.
A May 2011 therapy progress report by Bromberg stated that B.G. lacked an understanding of psychological attachment and the feelings J.M.G. was likely experiencing. Bromberg opined that B.G. would offer J.M.G. an environment substantially less safe and stable than her foster home as described by the Division.
Biller wrote a summary in January 2012, after twelve therapy appointments with B.G. He opined that B.G.'s reluctance to acknowledge concerns raised by the Division was caused by narcissistic features in B.G.'s personality. Although Biller said therapy had some success, he cautioned, "While [B.G.] is demonstrating therapeutic progress it is uncertain if he has internalized an understanding of the significance of his wife's emotional functioning, the negative impact her emotional functioning can have on her parenting capacity, or the emotional experience of his daughter and her attachment experience."
In a May 2011 letter, Kohutis addressed the status of V.M.'s treatment after nine therapy sessions. Kohutis stated V.M. was prone to exaggeration and disorganized thinking; she often seemed cut off from her own feelings; and was unable to realistically anticipate the future. Kohutis concluded:
Taken together, [V.M.'s] inability to relate to her child and to understand her child's needs and experiences, her inability to be emotionally supportive and empathic with her daughter, her heightened sense of self-importance, her grandiosity, and illogical thinking underscore the importance of her psychotherapy. Her therapy will not be short-term for these issues are long standing and will take many years to resolve.
Dr. Heidi Jacobsen wrote a January 2012 therapy update about V.M., who attended weekly therapy sessions since September 2011. Jacobsen observed that V.M. had only a minimal understanding of the concerns that led to J.M.G.'s removal and consistently denied engaging in well-documented negative behaviors. V.M.'s lack of recognition of her past behavior raised concerns about her judgment and ability to demonstrate appropriate decision-making in the future. Although V.M. had begun to identify how she would assist J.M.G. with her anxiety, V.M. lacked empathy for J.M.G.'s situation and could not determine how she would handle J.M.G.'s sense of loss if J.M.G. were removed from her foster parents.
Division records also documented that J.M.G. had negative reactions to visitation in 2009, including resisting visitation before it occurred, difficulty sleeping, and thumb sucking afterward.
At trial, the Division called Dr. Frank J. Dyer, a psychologist; Dr. Robert Latimer, a psychiatrist; as well as Groisser, J.M.G.'s play therapist, and Amatrudi, the Division's caseworker. The Law Guardian called Jewelewicz-Nelson. V.M. called Dr. Andrew Brown, a psychologist; and B.G. called Dr. Antonio Burr, a psychologist. Defendants also called Cantillon. B.G. also testified.
Dyer evaluated V.M. in October 2011. His diagnosis then was depressive disorder NOS. After he reviewed V.M.'s hospitalization records, he revised his diagnosis to schizoaffective disorder. Dyer explained that schizoaffective disorder is a combination of psychosis, schizophrenia and mood disorder. He opined V.M. did not suffer from PTSD, which is generally not associated with delusions.
V.M. denied engaging in well-documented incidents of making false alarms, and threats. Dyer stated, "[T]his pattern of denial, evasiveness and distortion that [V.M.] has presented over the years . . . makes her impossible to work with in terms of doing any kind of effective supervision or monitoring of her." He noted that V.M. cannot tolerate being labeled as disturbed.
Dyer opined that V.M.'s prognosis for improvement was poor given defensiveness, denial and her skill at presenting herself as functioning normally. He believed that her erratic and dangerous behavior would pose a risk of harm to J.M.G., both physically and psychologically.
Dyer believed that V.M. had no realistic understanding of J.M.G.'s circumstances. She believed J.M.G. was suffering because she was separated from V.M. If J.M.G. were returned to her, she would dismiss J.M.G.'s yearnings for her foster parents and speak of them negatively. Moreover, if J.M.G. expressed anything other than joy at being home, V.M.'s psychological stability would be threatened. Although Dyer did not believe that V.M. would physically abuse J.M.G., he worried that V.M. would exacerbate J.M.G.'s distress rather than alleviate it. Further, he worried that V.M.'s frequent involvement with the police and her violent outbursts could expose the child to physical harm.
As for B.G., Dyer found he had a personality disorder NOS, with schizotypal and dependant features. B.G. did not have a clear understanding of V.M.'s mental illness, attributing her problems to the stress of this case and her workplace accident in 1993. His denial of facts concerning V.M.'s illness, his failure to report her hospitalizations to the Division, and his unwavering support for her version of reality arose from his dependence on her and from schizotypal features of his personality, which caused him to process events in an eccentric and unrealistic way.
Dyer expressed concerns that B.G. lacked understanding of J.M.G.'s relationship with her foster parents. Dyer opined B.G. would not be able to serve as a buffer against difficulties arising from a psychological regression by V.M., because he consistently concealed his wife's illness and aided and abetted her delusions.
Dyer met J.M.G. with her foster parents. He opined she was a sweet but not resilient child. He identified three possible causes of her emotional vulnerability: (1) she was removed from her first foster home at a young age; (2) she was aware that there were processes occurring that could lead to her removal from her current foster home; and (3) she might have some genetic predisposition for emotional problems, given that parents who have serious psychiatric disorders tend to have offspring who are at greater risk for those same disorders.
Dyer concluded that J.M.G. was profoundly bonded to her foster parents. She was emotionally responsive to them and looked to them as her "central parental love objects"; they were her primary source of nurturance, emotional security, affection, and physical protection. He categorically rejected the suggestion that J.M.G.'s anxiety might be due to a less than secure attachment to her foster parents.
Dyer did not conduct a comparative bonding evaluation with J.M.G. and her birth parents, stating one was unnecessary, given the length of her placement with the same foster parents, and the results of her last visitation with defendants. A bonding assessment would also cause much more harm to the child than it would yield useful information. If J.M.G. had any sort of emotional investment in her birth parents, the potential effect of visits with defendants was "ambivalent at best and probably predominantly a negative investment."
Dyer opined that if J.M.G. were removed from her foster home she would suffer a catastrophic level of harm. She would have life-long emotional scars, impaired self-esteem, and trouble trusting any other adult. In order to mitigate her anxiety after removal, it would be necessary for her new caretakers to have an appreciation of her distress. Dyer stated that the lack of permanency in J.M.G.'s life had been harmful to her. She needed the permanency that adoption would afford.
Latimer evaluated V.M. in November 2011. He opined she suffered from schizoaffective disorder, which he described as a form of schizophrenia in which elements of mood are significant. Schizophrenia is a thought disorder, mostly manifested by delusions and hallucinations. Latimer testified that V.M.'s diagnosis of schizoaffective disorder reflected her history of digressive, illogical, recurrent episodes of acute agitation, delusions, abnormal behavior, flat affect, and impairment of insight. Latimer expressed doubt regarding a PTSD diagnosis, stating V.M.'s prescribed medications were classic drugs for treating psychotic conditions, not PTSD. Regarding her 2009 hospitalization, Latimer also opined that V.M. probably was non-compliant with her medication.
During her clinical interview with Latimer, V.M. was unspontaneous, and cooperated only passively. She said she was taking Abilify, Trazodone, Prazosin, and Buspirone. She denied any history of psychotic behavior. Latimer said that V.M.'s denial was a "very bad symptom."
Latimer stated that V.M. had delusions of grandiosity, which probably reflected a poor self-image. Latimer explained there is no cure for schizophrenia, although the symptoms could be treated. Latimer opined that V.M. lacked the empathy to understand a child. When experiencing psychotic symptoms, she was unreliable, unpredictable, and difficult to control. Any child in her care would be emotionally at risk.
Jewelewicz-Nelson originally evaluated V.M. and B.G. in October 2010, and testified at the visitation hearing. She evaluated defendants again in October 2011. Although Jewelewicz-Nelson originally diagnosed V.M. with a personality disorder NOS, she revised the diagnosis to schizoaffective disorder after reviewing V.M.'s 2009 hospitalization records. She opined V.M.'s symptoms were inconsistent with a PTSD diagnosis. Although various mental health professionals examined V.M. over the years, a common theme was cognitive distortions, delusions, and minimizing severity of symptoms.
Jewelewicz-Nelson stated that V.M.'s condition had deteriorated between 2010 and 2011. V.M. told Jewelewicz-Nelson that J.M.G. was pining away for her, and was very unhappy with her foster family. Jewelewicz-Nelson concluded that V.M. had firmly held delusions about her relationship with J.M.G., had a rigid and inflexible cognitive and emotional style, minimized her mental illness, and externalized blame on everybody else. Moreover, V.M. could not meaningfully engage in therapy. She lacked the trust necessary to enter into a therapeutic relationship. Jewelewicz-Nelson opined that V.M.'s prognosis was very poor. Progress depended on acknowledging her illness, recognizing the need to adjust her medicine, and accepting the need for life long treatment — and V.M. had done none of these things.
Jewelewicz-Nelson testified that V.M. posed a tremendous risk to J.M.G. Jewelewicz-Nelson was concerned that V.M. had a serious mental disorder and refused to acknowledge her illness and the effect of her medicines, which blunted her affect, her reaction time, and her ability to recognize others' needs. Jewelewicz-Nelson believed V.M. lacked the capacity for empathy, and the ability to recognize a child's needs.
As for B.G., Jewelewicz-Nelson found he appeared much worse in 2011 than in 2010. His evasiveness had increased substantially. He was not forthcoming with information. He told Jewelewicz-Nelson that V.M. had a diagnosis of PTSD, but would not present a threat to J.M.G. He claimed he did not know what medications V.M. was taking. Although he was present during V.M.'s psychiatric admissions, he denied she ever experienced delusions or psychotic behavior.
Jewelewicz-Nelson observed that either B.G. was out of touch with what was going on with V.M. or that he was so enmeshed in protecting her that he would put her needs ahead of anyone else's. Either way, it did not bode well for his ability to care for J.M.G. B.G. thought J.M.G. would be able to transition from her foster home to his care in a couple of weeks, without any problems.
Jewelewicz-Nelson adhered to her 2010 diagnosis that B.G. had a personality disorder NOS. B.G.'s prospects for improvement were poor. During his joint interview with V.M., he was extremely enmeshed with his wife to the point that he would not express his own opinions or feelings without her approval. He deferred to V.M. to answer all questions. Jewelewicz-Nelson opined that B.G. probably could not function without direction from V.M.
Jewelewicz-Nelson concluded that B.G. could not provide a safe and stable home for J.M.G. Even if he were working from home, he would not be able to pay full attention to her. He was not aware of the depth and range of her fears. Moreover, he would continue to promote a relationship between J.M.G. and V.M. that would be detrimental to the child. He was not capable of putting his daughter's needs ahead of V.M.'s and not capable of protecting her from V.M. In addition, B.G. lacked flexibility and empathy.
Jewelewicz-Nelson conducted a bonding evaluation of J.M.G. and her foster parents in October 2011. There was a stark difference between the way the child presented at this evaluation and in January 2011. Earlier, J.M.G. was talkative, smiling, friendly, and engaged. She allowed her foster parents to leave the room and played with Jewelewicz-Nelson in an age appropriate manner. In October 2011, J.M.G. buried her face in her foster mother's chest, sucked her thumb, refused to talk to Jewelewicz-Nelson, and would not separate from her foster parents. J.M.G.'s kindergarten teacher reported to Jewelewicz- Nelson that J.M.G. was a very compliant child, but was withdrawn and lacked "oompf." Jewelewicz-Nelson opined that J.M.G. was "far from being resilient." She was fearful, regressed, anxious and timid. Her functioning had deteriorated significantly over the last year and she was petrified by the prospect of losing her foster parents.
Jewelewicz-Nelson concluded that there was an extremely close bond between J.M.G. and her foster parents. If J.M.G. were removed from them, she would suffer catastrophic harm from which she might never recover. The trauma would be compounded if she were placed with V.M. and B.G., because she was afraid and uncomfortable with them. Moreover, they would be unable to mitigate her loss. Jewelewicz-Nelson stated that a bonding evaluation of J.M.G. and defendants was unnecessary. Based on the case history, she was confident J.M.G. did not have a comparable bond with defendants.
Jewelewicz-Nelson opined that J.M.G. needed permanency. J.M.G. wanted the same last name as her foster parents and she wanted a guarantee that she would always stay with them. Delaying permanency in order to give defendants more time for therapy would harm her. J.M.G.'s anxiety would continue as long as she had to deal with ongoing court proceedings.
Groisser testified about J.M.G.'s progress in play therapy since October 2010. Groisser stated that J.M.G. had started to talk more about her experiences and her feelings. Groisser stated J.M.G. was fearful of being taken away from her foster parents. J.M.G. continued to experience separation anxiety, nightmares, poor sleeping, thumb sucking, and occasional regression in speech.
Nevertheless, Groisser believed that J.M.G. had improved since July of 2011. J.M.G. had difficulty going to school, but she was able to get through the day without her foster parents being called. She was less frustrated and irritable, and was not having as many temper tantrums as after the last visit. She still had nightmares, but they did not seem to be as violent. She also gained a little weight over the last six months. Groisser stated that J.M.G. was doing well in kindergarten.
Groisser testified that when she last asked J.M.G. about her birth parents, J.M.G. tried to change the subject. When pressed, she stated she did not want to see them again. She said some positive things about them though, such as recalling a blue car they played with and a snack they used to bring her. She also said she would tell them that she loves them. Once, she expressed concern about her birth parents not having another child and said, "I hope they're OK." Groisser opined that J.M.G. had some love for her birth parents, but she was confused. Her predominate fear was of being removed from her foster home.
Permanency was critical to J.M.G., according to Groisser. Termination of defendant's parental rights would not likely have any long term emotional impact on her. This was especially true since her foster parents have said that if in the future J.M.G. wanted some contact with her birth parents, they would be open to it.
Amatrudi presented letters V.M. had written to various elected and Division officials, and B.G.'s 2008 federal tax return. Amatrudi testified that neither V.M. nor B.G. ever told her that they received treatment from anyone besides Cantillon and never told her about V.M.'s 2009 hospitalizations. Amatrudi recounted that during a 2009 court appearance when V.M. was hospitalized, B.G. said his wife had the flu.
Amatrudi stated she visited the foster family on a monthly basis, and J.M.G. seemed very comfortable in the home. Amatrudi had no concern over the care J.M.G. was receiving in the foster home. J.M.G. was incredibly attached to her foster mother, and viewed her foster parents as her parents. The foster parents remained committed to adopting her. Amatrudi also visited defendants' home and found it was adequate and presented no obvious safety hazards to a child.
Brown testified based on his September 2011 evaluation of V.M. and his review of her medical history. He concluded she suffered from PTSD (by history) and opined there were no psychological indications that V.M. was not capable of parenting her daughter. Brown relied on the results of the Personality Assessment Screener (PAS) and other tests. He concluded V.M. retained the ability to solve problems and engage in executive functioning, and had a very high average to superior intelligence.
Brown was aware that V.M. had been diagnosed with PTSD and an anxiety disorder in the past, but his clinical interview did not suggest that she currently had PTSD or any other debilitating disturbance. V.M. did not appear unkempt or disheveled, and although her affect was flat, she smiled and laughed appropriately during the interview, and was pleasant and cooperative. V.M. told Brown that she was raised by two working parents in a middle-class family in Livingston, New Jersey. Contrary to reports of others, she denied abuse or neglect as a child, and that any members of her family were involved with mental health professionals.
Brown observed that the fact that V.M. was in treatment with Cantillon suggested that perhaps she had PTSD. She told him that her current medications were Prazosin, Depakote, Klonopin, Risperdal, Seroquel, Buspar, and Trazodone. He commented that it seemed to take "them" a long time to get her medications right. He opined that the medication would have no effect on her parenting, she seemed to be "doing everything she can to be compliant, " and she posed no threat to the welfare of her child.
Brown did a bonding evaluation of J.M.G. and her foster parents in December 2011. He concluded that J.M.G. was indeed bonded to the foster parents, and showed no fear or reluctance when she was with them. He commented that those results were not unusual given the amount of time she spent with them. Brown noted that J.M.G. was very anxious at the beginning of the bonding evaluation, and had shown high levels of anxiety in school. He opined that J.M.G.'s symptoms may be predisposed by a genetic factor, and that the child's anxiety may be related to the mother's anxiety problems. He also suggested that the child might have some type of autism disorder. He did not think the birth parents were the cause of J.M.G.'s anxiety, although her anxiety may have been triggered by her relationship with them, or lack thereof. Significantly, Brown did not recommend reunification. Although he concluded that permanency was important for J.M.G., he recommended that V.M. be allowed to visit with her.
On cross-examination, it was elicited that Brown reviewed only two doctors' evaluations of V.M., and had not consulted with V.M.'s treating therapist or psychiatrist. He presumed she complied with her medication because she told him that she did. He was apparently unaware of V.M.'s bizarre and delusional behaviors, or psychiatric hospitalizations, but he said her past psychotic episodes would only be relevant if she were still exhibiting symptoms, and they did not affect her present parenting ability.
Burr testified on behalf of B.G. based on an evaluation in November 2011, which included a clinical interview and various testing. B.G.'s defensiveness limited the usefulness of the testing. In the clinical interview, B.G. appeared somewhat embattled and came to his wife's defense. He tended to minimize V.M.'s illness and dismissed the importance of some of her psychotic behavior. Burr believed that B.G. had an unquestioning alliance with his wife and that his defensive attitude was mostly an adaptive reaction to the removal of his child, for what he believed were arbitrary reasons. Burr found it significant that B.G. made such a profound commitment to support and care for his wife. Based on his examination and review of the record, Burr concluded that there was no indication that B.G. would not be a competent parent to J.M.G.
Burr also performed a bonding evaluation of J.M.G. and her foster parents. J.M.G. exhibited no anxiety or distress, and the foster parents responded appropriately to Burr's questions. J.M.G. called her foster parents "mommy" and "daddy, " which Burr found to be fairly common. He found it unusual, however, that the foster mother called J.M.G. her "daughter." Burr observed that J.M.G. focused on her foster parents as her primary parental objects and related to them as her psychological parents. He concluded that a bond had developed between J.M.G. and her foster parents.
Burr described the foster parents as reasonable and perfectly capable people, who provided a good parenting environment for the child. He could not say how much of J.M.G.'s anxiety comes from them. Burr speculated that the foster parents would be capable of mitigating any harm that J.M.G. might suffer as the result of the termination of defendants' parental rights.
Burr expressed his frustration with this case, commenting that it was not entirely clear to him from which direction harm had come to J.M.G. The birth parents have substantial problems, but they were never given an opportunity to parent their child. They only wanted to communicate to her that she is loved and wanted, and there was no harm in that. He believed that the Division was unnecessarily aggressive, and the evaluations of psychiatrists early in case were remarkably hostile.
Burr did not recommend reunification. He acknowledged that permanency was important, and stated that he respected the opinions of J.M.G.'s therapists. He could not say, however, that J.M.G. would suffer serious and enduring harm if removed from her foster parents. He opined that this litigation has been a significant stressor in J.M.G.'s life. Although terminating defendants' parental rights may be to her "immediate defensive benefit, " it was not to her benefit in the long term.
B.G. testified on his own behalf. He stated that V.M. suffered from PTSD and attended regular sessions with her psychiatrist. He stated he supported her, saw that she went for treatment and took her medication. He asserted her illness was under control; she was functioning well; and had no erratic behavior over the last six to eight months. B.G. did not recall, or denied significant details of V.M.'s history, symptoms, diagnoses, and hospitalizations. B.G. also claimed he did not understand why visitation was suspended in 2009, failing to recall V.M.'s bizarre behavior that prompted the court's action. He also avoided responsibility for the representation by V.M.'s attorney that V.M. was absent from court in 2009 because she had the flu, when she was, in fact, hospitalized.
B.G. testified that if J.M.G. returned to him and needed attention, he would utilize available resources to help her, and would work with the Division to find a different therapist for J.M.G. He asserted the one she had been seeing had not helped her. He did not believe J.M.G. would suffer a catastrophic loss if removed from her foster home.
B.G. stated that he would be J.M.G.'s primary caretaker and currently was at home twenty-four hours a day, seven days a week. He worked as a dispatcher for a limousine company and could provide for J.M.G. financially. Also, he had a support system of numerous family members near his home.
B.G. said that his therapy with Biller the past several months had helped him. B.G. asserted that J.M.G.'s symptoms had grown over the years while separated from her birth parents. He said his daughter knew him; was not afraid of him; and enjoyed their March 31, 2011, visit. He was unaware that J.M.G.'s therapist reported that she had an adverse reaction to the visit. B.G. stated that J.M.G. had suffered tremendously in her foster home and would continue to suffer until she returned home to him. He suggested J.M.G. cried often in the foster home, and J.M.G. told her therapist that her foster mother was "mean." He believed that when J.M.G. called out for "mommy" and "daddy" in the middle of the night, she was asking for him and V.M.
The Trial Court's Decision
On March 21, 2012, the judge rendered an oral decision finding that the Division had established prongs two and four of the best interests test by clear and convincing evidence. On that same date, the court issued a judgment of guardianship terminating the parental rights of V.M. and B.G.
Judge Bernstein stated that prong one had already been established before remand, and the parties stipulated that prong three was also met. In any event, he found the Division had fulfilled its obligation to provide services to defendants.
Judge Bernstein found that experts who testified on behalf of the Division and the Law Guardian to be helpful and "very, very credible, " in part based on their thorough review of the records and their interviews of other experts and treating professionals. The judge reviewed at length the testimony of Dyer, Latimer, and Jewelewicz-Nelson, noting that all three diagnosed V.M. as suffering from schizoaffective disorder. The judge dismissed Brown's and Burr's testimony, noting their limited knowledge of the case history, which made their credibility "extremely questionable."
The judge observed it was unlikely V.M. ever suffered from PTSD, since her medications were the sort used to treat psychosis. He recognized V.M. appeared to have stabilized with the medications Cantillon prescribed. The judge found both defendants harbored a delusion that their daughter's "problems, nightmares and issues are as a result of pining and missing her natural parents which she has seen once in almost two years[.]"
Judge Bernstein found neither defendant was capable of caring for a small child with emotional needs, and neither had the empathy to understand what the child was going through. Moreover, neither V.M. nor B.G. were capable of changing. V.M. did not have the emotional or cognitive skills to parent. B.G. was not credible; was in denial about V.M.'s condition; and shared his wife's delusions and accepted them as reality. B.G. was completely enmeshed in his wife's problems, unable to function without her, and would not put his child's needs ahead of hers.
Judge Bernstein praised Groisser's and Smith's efforts; credited their predictions of harm if visitation continued; and stated, "This is not a lab rat that we're dealing with. This is a child who is emotionally sensitive, and is not capable of dealing with the issues that she has had to face for now six years."
The judge noted that all of the credible doctors who testified made it very clear that J.M.G. needed permanency. She was totally bonded to her foster parents, and was thriving in their care. Any continued contact with defendants at this point would only cause her additional harm.
Judge Bernstein concluded:
I have no question in my mind that the Division has proven by clear and convincing evidence in this case that Prong 2 and Prong 4 have been met. I have rarely seen a case where the evidence was so clear and convincing as this case. These parents have not changed, if anything, their positions are even more bizarre and alarming than they were when I first heard this case. Their delusions with regard to their beliefs of how this child is reacting to missing them after hearing the testimony they have, their continued evasiveness and basically complete denial shows a lack of any empathy for this child, any caring for this child. They have put their needs ahead of this child. They are not ready to be treated. They're not ready to change their behavior, and clearly this [c]ourt finds that the parents are unwilling and unable to provide a safe and stable home for these children [sic] and delay of permanency . . . will continue to cause tremendous harm to this child. And the delay so far . . . has already caused problems. I am convinced that the additional time that this case has been in litigation has created more problems for [J.M.G.]. The fact that she is older, understands . . . that her situation is still precarious. No one can tell her that she is going to live with her foster parents forever has created undue harm. . . . And any further delay will cause serious and permanent harm to this child.
Regarding prong four, the judge justified his decision to prevent a bonding evaluation of J.M.G. and defendants.
[T]o the extent the defendants were not given an opportunity to examine her, to put her under a microscope, I've already ruled that this would have caused more harm to her. We have very credible testimony by her treating doctors, or the doctors in this case and I was satisfied that any further examinations would clearly not do anything but cause potential harm to this child.
The judge concluded, "I'm, also, satisfied that . . . termination of parental rights will not do more harm than good. It is clearly in her best interest that the Division be granted guardianship at this time and the parental rights of [V.M.] and [B.G.] should be terminated."
Defendants' guardianship appeal followed. Although we initially granted motions for visitation pending appeal in June 2012, the Supreme Court stayed visitation by order dated September 5, 2012.
II. We turn first to defendants' appeal from the permanency order in the Title 9 litigation. V.M. presents the following points for our review:
I. THE REMAND PROCEEDINGS IMPROPERLY RE-LITIGATED THE ISSUE OF THE BEST INTERESTS OF THE CHILD AND STILL DID NOT PRODUCE EVIDENCE SUFFICIENT TO JUSTIFY TERMINATION OF PARENTAL RIGHTS UNDER THE SECOND PRONG OF THE STATUTE, A PRIMARY ISSUE ON WHICH THIS COURT REMANDED.
II. THE DENIAL OF VISITATION AND ACCESS TO THE CHILD TO EVALUATE THE IMPACT OF VISITATION DURING THE REMAND PROCEEDINGS HAS SIGNIFICANTLY PREJUDICED THE DEFENDANT-PARENTS IN BOTH THE HEREIN APPEAL AND THE CURRENT GUARDIANSHIP PROCEEDING.
III. THE ERRORS IN THE REMAND HEARINGS RESULTED IN DENIAL OF DUE PROCESS REGARDING MATTERS OF FEDERAL AND STATE CONSTITUTIONAL RIGHTS.
IV. THE STATE IS STILL PROCEEDING ON A GENERALIZED "BEST INTERESTS" THEORY WHICH THIS COURT WARNED AGAINST, AND THE REMAND COURT MISSED THE MARK IN NOT HOLDING THE STATE TO A HIGHER STANDARD OF PARTICULARIZED EVIDENCE AS TO EACH OF THE FOUR PRONGS.
B.G. presents the following points for our review:
I. THE COURT BELOW ERRED IN FAILING TO REQUIRE THE DIVISION TO PROVIDE MEANINGFUL VISITATION BETWEEN B.G. AND J.M.G., THUS DEPRIVING B.G. OF HIS CONSTITUTIONAL PARENTAL RIGHTS (raised below).
A. DYFS FAILED TO MAKE REASONABLE EFFORTS TO REUNIFY J.M.G. WITH B.G.
B. THE TRIAL COURT'S FINDING THAT J.M.G. WOULD SUFFER PSYCHOLOGICAL HARM FROM CONTINUED VISITATION IS AN INSUFFICIENT BASIS TO SUSPEND VISITS OR TO APPROVE A PERMANENCY PLAN TERMINATING PARENTAL RIGHTS.
C. THE TRIAL COURT ERRED IN FINDING THAT VISITATION HAD CAUSED PSYCHOLOGICAL HARM TO J.M.G.
II. THE TRIAL COURT IMPROPERLY ENTERED DISPOSITIONAL ORDERS IN A TITLE 9 ACTION ABSENT ANY FINDING OF ABUSE OR NEGLECT, WHICH DEPRIVED B.G. OF HIS PROCEDURAL DUE PROCESS RIGHTS (raised below).
In addition to challenging defendants' claims of error, the Division and the Law Guardian argue defendants' appeal is moot in light of the judgment of guardianship. We agree, and therefore do not reach the remaining issues raised regarding the permanency hearing and resulting order.
"An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corrs., 382 N.J.Super. 254, 257-58 (App. Div. 2006) (internal quotation marks and citation omitted). However, a dispute is not moot if a party will still suffer "adverse consequences" from the decision. N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 261-62 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010). "Mootness is a threshold justiciability determination rooted in the notion that judicial power is to be exercised only when a party is immediately threatened with harm." Betancourt v. Trinitas Hosp., 415 N.J.Super. 301, 311 (App. Div. 2010) (citation omitted).
We begin by addressing V.M.'s and B.G.'s contention that we have already rejected the Division's and Law Guardian's mootness argument, both in our order denying the Division's motion to dismiss, and in our previous decision in V.M. I, supra, 408 N.J.Super. at 236 (Carchman, J., concurring). We are unpersuaded.
First, defendants misconstrue the significance of our prior order denying the Division's motion to dismiss. "The denial of [a] motion to dismiss merely preserve[s] the issue for later review in the context of the plenary appeal." Parker v. City of Trenton, 382 N.J.Super. 454, 457 (App. Div. 2006) (discussing effect of denial of motion to dismiss appeal as interlocutory); see also GMAC v. Pittella, 205 N.J. 572, 577 n.2 (2011) (citing Parker, supra, for same proposition).
Second, our decision in V.M. I does not resolve the instant mootness argument. In V.M. I, we declined to hold that defendants' appeal was moot because defendants were appealing from a finding that they had abused or neglected J.M.G. We noted that regardless of the subsequent guardianship case, a finding of abuse or neglect had continuing impact, namely, entry of defendants' names in the Central Registry. V.M. I, supra, 408 N.J.Super. at 237-38; see also A.P., supra, 408 N.J.Super. at 262 ("[W]e do not question a parent's right to pursue an appeal from a final order of disposition after an adjudication of abuse or neglect in an action brought under Title 9.")
However, as we noted in A.P., supra, the "dismissal of a Title 9 action without an adjudication that the parent has abused or neglected his or her child has none of the adverse consequences of a final order of disposition based on a finding of abuse or neglect." 408 N.J.Super. at 262. Defendants here challenge the court's August 11, 2011 order, approving the Division's permanency plan and its dismissal of the Title 9 litigation. Faced with a similar challenge in A.P., supra, we determined the filing of a guardianship complaint under Title 30 rendered moot the parents' appeal from an order dismissing the Division's Title 9 action where there was no adjudication of abuse or neglect.
We observed that the dismissal of the Title 9 action "adjudicates nothing" and leaves the parties in a position as if "suit had never been brought, thus vitiating and annulling all prior proceedings and orders in the case." Id. at 263 (internal quotation marks and citations omitted). We noted that the Title 9 dismissal order provided for continuation of the Division's legal custody of the child. Ibid. However, a subsequent order in the Title 30 action superseded that aspect of the dismissal order. Thus, there was no continuing effect of the Title 9 order. Ibid.
We reach the same result here. Defendants appeal from the August 11, 2011 permanency order. They allege the court erred in denying visitation under the Title 9 docket. Notwithstanding the court's conduct of a plenary hearing on the restoration of visitation in early 2011, and an extensive permanency hearing in the summer of 2011, they argue violations of due process in the failure to file a new complaint under the FN docket. However, the August 11 order had no continuing effect upon visitation once the FN case was dismissed, the guardianship complaint was filed, and the court entered subsequent orders in the case maintaining the Division's continuing care and custody of J.M.G., and barring visitation. Defendants' due process rights were to be preserved in the Title 30 action. See A.P., supra, 408 N.J.Super. at 260 ("A.P.'s due process rights will be fully protected by the trial of the Title 30 action, which will afford her the opportunity, under the criteria set forth in N.J.S.A. 30:4C-15.1(a), to contest the charges of abuse or neglect or other harm to the child caused by the parental relationship[.]"). To the extent defendants assert a due process or other violation of their rights on appeal, they shall be considered appropriately in the context of the appeal from the final order in the guardianship case.
Finally, we reject V.M.'s argument that New Jersey Division of Youth & Family Services v. F.M., 211 N.J. 420 (2012) compels a different result. In F.M., the Court held that a defendant must timely challenge whether the Division had the right to assume "care or custody" of a child, or risk application of the doctrine of laches. 211 N.J. at 445. However, timely challenge of the Division's care and custody preserves the issue on appeal from final judgment in the guardianship trial. The issue is nonetheless moot in the context of defendant's appeal from the August 11 order in the Title 9 case.
Consequently, we dismiss defendants' appeal from the court's August 11, 2011 order. We turn next to the appeals from the order terminating parental rights.
III. V.M. presents the following points for our review in her appeal from the guardianship judgment:
I. THE TRIAL COURT APPLIED THE WRONG LEGAL STANDARDS, NECESSITATING THIS COURT'S DE NOVO REVIEW OF THE MANNER IN WHICH THE REMAND WAS CONDUCTED AND THE LEGAL CONCLUSIONS DRAWN FROM THE EVIDENCE.
A. THE TRIAL COURT'S MISAPPLICATION OF THE LAW AND MISUNDERSTANDING OF ITS ROLE CAUSED THE LITIGATION TO CONTINUE WITHOUT ADEQUATE BASIS AND FAILED TO RESOLVE DOUBTS IN FAVOR OF THE PARENTS AS REQUIRED BY LAW.
B. THE TRIAL COURT'S MISAPPLICATION OF THE LAW AND MISUNDERSTANDING OF ITS ROLE CAUSED THE LITIGATION TO CONTINUE ON A GROSSLY UNEQUAL FOOTING, PREJUDICING BOTH THE PARENTS' ABILITY TO DEFEND AND THE QUALITY AND QUANTITY OF THE EVIDENCE AVAILABLE TO THE COURT ON WHICH TO MAKE A DETERMINATION CONSISTENT WITH THE CHILD'S BEST INTERESTS.
C. THE TRIAL COURT'S MISAPPLICATION OF THE LAW AND MISUNDERSTANDING OF ITS ROLE RESULTED IN A PROCEEDING WHICH CANNOT REMOTELY BE CONSIDERED TO BE CONSISTENT WITH THE DUE PROCESS CLAUSE.
D. THE TRIAL COURT'S MISAPPLICATION OF THE LAW AND MISUNDERSTANDING OF ITS ROLE LED TO APPLICATION OF VERY TEST THE APPELLATE DIVISION WARNED AGAINST IN AUGUST 2010.
E. THE TRIAL COURT'S MISAPPLICATION OF THE LAW AND MISUNDERSTANDING OF ITS ROLE CAUSED IT TO EQUATE PERMANENCY WITH CONTINUITY IN CARE.
II. EVEN IF THE TRIAL COURT HAD ATTEMPTED TO APPLY THE PROPER LEGAL PRINCIPLES, THERE WAS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE CONCLUSION THAT THE SECOND AND FOURTH PRONGS OF N.J.S.A. 30:4C-15.1a WERE NOW SATISFIED BY CLEAR AND CONVINCING EVIDENCE.
A. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT VM'S PSYCHIATRIC CONDITION RENDERS HER AN UNSAFE PARENT.
B. A NUMBER OF THE TRIAL COURT'S FACTUAL FINDINGS IN SUPPORT OF ITS CONCLUSION THAT THE SECOND PRONG WAS NOW SATISFIED WERE UNSUPPORTED BY THE RECORD.
C. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT THE FOURTH PRONG OF THE STATUTE WAS NOW SATISFIED BY CLEAR AND CONVINCING EVIDENCE.
1. THE TRIAL COURT'S DECISION AS TO THE FOURTH PRONG SHOULD NOT BE AFFIRMED BECAUSE IT DOES NOT SATISFY THE REQUIREMENTS OF R. 1:7-4(a) AS TO THE FOURTH PRONG.
2. THE TRIAL COURT'S DECISION AS TO THE FOURTH PRONG SHOULD BE REJECTED BECAUSE IT WAS NOT REACHED BASED UPON A FULL AND FAIR PRESENTATION OF THE EVIDENCE.
3. THE TRIAL COURT'S DECISION AS TO THE FOURTH PRONG SHOULD BE REJECTED BECAUSE IT WAS REACHED WITHOUT THE PARENTS' BEING GIVEN ADEQUATE VISITATION.
III. THE TRIAL COURT ERRED IN THAT IT DID NOT PROPERLY EVALUATE THE THIRD PRONG OF N.J.S.A. 30:4C:15.1a AS REQUIRED BY THE STATUTE.
A. THE TRIAL COURT ABDICATED ITS ROLE AND ERRED BY ACCEPTING THE DEFENSE ATTORNEYS' STIPULATION ON A MATTER OF LAW AS TO THE FIRST HALF OF THE THIRD PRONG.
B. THE TRIAL COURT DID NOT FULFILL ITS STATUTORY OBLIGATION TO EVALUATE ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.
IV. THE TRIAL COURT ERRED IN APPLYING THE "LAW OF THE CASE" DOCTRINE TO PRECLUDE EVALUATION OF THE SUFFICIENCY OF THE EVIDENCE AFTER REMAND TO SATISFY THE FIRST PRONG OF N.J.S.A. 30:4C-15.1a.
B.G. presents the following points for our review:
I. THE TERMINATION OF B.G.'S PARENTAL RIGHTS TO HIS DAUGHTER, J.M.G., MUST BE REVERSED BECAUSE THE STATE DEPRIVED B.G. OF HIS RIGHT TO RAISE A CHILD AND MAINTAIN A RELATIONSHIP WITH THAT CHILD, WITHOUT UNDUE INTERFERENCE BY THE STATE, WHICH IS PROTECTED BY THE DUE PROCESS CLAUSES OF THIS STATE, NEW JERSEY CONSTITUTION ARTICLE I, AND OF THE UNITED STATES CONSTITUTION, AMEND XIV, SEC 1.
II. DYFS' TERMINATION OF B.G.'S PARENTAL RIGHTS TO HIS DAUGHTER, J.M.G., MUST BE REVERSED BECAUSE DYFS LACKED THE REQUISITE CARE OR CUSTODY IT NEEDED TO BRING A SECOND "BEST INTERESTS" FG ACTION PURSUANT TO N.J.S.A. 30:4C-15(c) (raised below).
A. DYFS DID NOT OBTAIN DISPOSITIONAL CARE OR CUSTODY OF J.M.G. UNDER N.J.S.A. 9:6-8.21, et seq.
B. WITHOUT A TITLE NINE FINDING, THE TRIAL COURT DID NOT HAVE THE AUTHORITY TO KEEP J.M.G. IN CUSTODY FOR MORE THAN SIX MONTHS WITHOUT A HEARING.
C. INTERIM, INTERLOCUTORY CARE OR CUSTODY PENDING TRIAL DOES NOT SUFFICE AS THE CARE OR CUSTODY NEEDED FOR DYFS TO BRING N.J.S.A. 30:4C-15(c) FGs.
D. DYFS CANNOT PREVAIL IN AN N.J.S.A. 30:4C-15(c) ACTION WITHOUT HAVING CARE OR CUSTODY OF THE SUBJECT CHILD AGAINST THE DEFENDANT PARENT EVEN IF IT CAN PROVE THE N.J.S.A. 30:4C-15.1a BEST INTERESTS TERMINATION TEST.
E. B.G.'S CHALLENGE TO THE RIGHT OF THE DIVISION TO PROCEED WITH THE TERMINATION OF HIS PARENTAL RIGHTS WITHOUT HAVING PROPER CARE OR CUSTODY OF J.M.G. AFTER THE DISMISSAL OF THE TITLE 9 PROCEEDING IS NOT BARRED BY THE DOCTRINE OF LACHES.
III.THIS COURT'S REVERSAL OF THE TERMINATION OF B.G.'S PARENTAL RIGHTS AND THIS COURT'S REVERSAL OF ANY FINDING OF ABUSE AND NEGLECT AGAINST B.G. BARS THE STATE FROM INITIATING YET ANOTHER GUARDIANSHIP ACTION AGAINST B.G. ARISING OUT OF THE SAME SET OF FACTS AND INVOLVING THE SAME CHILD.
A. THE PRIOR DETERMINATION THAT B.G.'S ACTIONS OR INACTIONS DID NOT CONSTITUTE ABUSE OR NEGLECT BY A PREPONDERANCE OF THE EVIDENCE STANDARD COLLATERALLY ESTOPS A LATER FINDING MADE BY A CLEAR AND CONVINCING STANDARD, THAT TERMINATION OF PARENTAL RIGHTS WAS WARRANTED.
B. THE EXONERATION OF B.G. ON CHARGES OF CHILD ABUSE AND NEGLECT AND THE REVERSAL OF THE TERMINATION OF B.G.'S PARENTAL RIGHTS PRECLUDES, UNDER PRINCIPLES OF DOUBLE JEOPARDY, THE TRIAL COURT'S SUBSEQUENT DETERMINATION THAT TERMINATION OF PARENTAL RIGHTS WAS WARRANTED.
IV. THE COURT BELOW ERRED IN FAILING TO REQUIRE THE DIVISION TO PROVIDE MEANINGFUL VISITATION BETWEEN B.G. AND J.M.G., DEPRIVING B.G. OF HIS CONSTITUTIONAL PARENTAL RIGHTS (raised below).
V. DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS NECESSARY TO TERMINATE B.G.'S PARENTAL RIGHTS IN ORDER TO PROTECT HIS CHILD'S BEST INTERESTS (raised below).
A. EACH PRONG OF THE STATE MUST BE MET BEFORE A FATHER'S RIGHT TO HIS DAUGHTER MAY BE EXTINGUISHED BY THE [missing end of sentence]
B. THE LAW OF THE CASE DOES NOT APPLY HERE.
1. THE DIVISION DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE COURT'S FINDING THAT THE HEALTH AND DEVELOPMENT OF J.M.G. WAS AND WOULD CONTINUE TO BE ENDANGERED BY HER PARENTAL RELATIONSHIP WITH B.G.
2. THE DIVISION DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE COURT'S FINDINGS THAT B.G. WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM.
3. THE JUDGMENT OF GUARDIANSHIP SHOUL[D] BE REVERSED BECAUSE DYF[S] FAILED TO MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP B.G. CORRECT THE CIRCUMSTANCES WHICH LED TO J.M.G.'S PLACEMENT OUTSIDE THE HOME.
4. THE DIVISION DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF B.G.'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
a. THE TRIAL COURT'S DENIAL OF B.G.'S MOTION FOR A BONDING EVALUATION WAS CLEARLY ERRONEOUS.
b. THE PRESENCE OF A BOND BETWEEN J.M.G. AND HER FOSTER PARENTS WAS AN INSUFFICIENT BASIS TO FIND THAT PRONG FOUR HAD BEEN SATISFIED.
VI. B.G. RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
Well-established principles guide our consideration of defendants' appeals. Our scope of review of the trial court's order is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Our deference to the trial judge's factual findings is rooted in his familiarity with the case, his opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 412 (1998). We review a trial court's decision mindful that "[t]he considerations involved in determinations of parental fitness are extremely fact sensitive and require particularized evidence that address the specific circumstances in the given case." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999) (internal quotation and citation omitted).
We will affirm the Family Part's decision to terminate parental rights when substantial, credible evidence in the record supports the court's findings. E.P., supra, 196 N.J. at 104. In other words, "[w]e will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice." F.M., supra, 211 N.J. at 448 (internal quotation marks and citation omitted). We shall not disturb the trial court's findings, even if we might have reached a different result. N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J.Super. 451, 477 (App. Div. 2012) (citing Beck v. Beck, 86 N.J. 480, 496 (1981)). However, we are not bound by the trial court's legal conclusions. See N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
We recognize that parents have a fundamental right to raise their children under the Constitution. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986); K.H.O., supra, 161 N.J. at 346-47. However, the constitutional protection surrounding family rights is mitigated by the State's parens patriae responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347 (citation omitted). Consequently, the parent's rights may be terminated upon a showing by clear and convincing evidence that the child is at risk of serious and lasting future harm under the four-prong statutory test. In re Guardianship of J.C., 129 N.J. 1, 10 (1992); see also N.J. Div. of Youth & Family Servs v. M.M., 189 N.J. 261, 280 (2007) ("The statutory best-interests-of-the-child standard aims to achieve the appropriate balance between parental rights and the State's parens patriae responsibility.").
To obtain a judgment of guardianship and terminate a natural parent's rights, the Division must prove four factors 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 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.
See A.W., supra, 103 N.J. at 604-10 (formulating best interest standard later codified in N.J.S.A. 30:4C-15.1(a)).
These four, often overlapping elements, "provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. When a parent contests termination of parental rights, "the cornerstone of the inquiry becomes 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." L.J.D., supra, 428 N.J.Super. at 479 (quoting J.C., supra, 129 N.J. at 10).
At the outset, we reject B.G.'s argument that the Division lacked the requisite care and custody of J.M.G. in order to file a guardianship complaint. B.G. argues, "Except for voluntary placements, [the Division] must bring an FN action for a child [asserting child abuse/neglect as defined N.J.S.A. 9:6-8.21 or parental unfitness as defined in N.J.S.A. 30:4C-12] and prevail in it, either at trial or by stipulation and consent of the defendant, before it can bring an N.J.S.A. 30:4C-15(c) 'best interests' [guardianship] for that child." B.G. asserts the Division did not satisfy either precondition, and therefore never properly obtained care and custody of J.M.G. He argues that, notwithstanding the permanency hearing, the Division lacked authority to file the guardianship complaint and seek termination of parental rights.
It is well settled that the Division may commence a Title 30 guardianship action without any prior finding of abuse or neglect, and without any prior action at all under Title 9. A.P., supra, 408 N.J.Super. at 259-60. A complaint may be filed, among other grounds, when "it appears that the best interests of any child under the care or custody of the division require that he [or she] be placed under guardianship[.]" N.J.S.A. 30:4C-15(c); see M.M., supra, 189 N.J. at 292 ("[I]rrespective of the outcome of the Title 9 hearing, the court had the authority under N.J.S.A. 30:4C-12 to retain custody of the child because the child's health and welfare would be at risk if returned to the home."); N.J. Div. of Youth & Family Servs. v. J.C., 423 N.J.Super. 259, 266 (App. Div. 2011) (stating that even "[i]n the absence of a finding of abuse or neglect, the Division's care, supervision, and custody of a child may continue based upon a 'best interest' analysis under N.J.S.A. 30:4C-12").
The Division maintained the care and custody of J.M.G. while defendants appealed from the finding of abuse and neglect in V.M. I. We reversed the finding as to B.G., but we did not order restoration of custody. 408 N.J.Super. at 252. Rather, we affirmed the order granting custody to the Division. Id. at 252. Thus, care and custody remained with the Division on remand.
Also, when we reversed the order terminating parental rights in the guardianship case in V.M. II, we stated the "decision cannot yet be made" whether V.M. would be in a position to physically and mentally sustain her daughter. V.M. II, supra, slip op. at 94. We did not expressly address the Division's continuing care and custody of J.M.G. However, we affirmed the trial court's finding that both parents had endangered their daughter's safety, health or development — the court's prong one finding. We reversed and remanded for proceedings consistent with our opinion. We thus did not disturb the Division's care and custody of J.M.G.
We also agree with the Division and the Law Guardian that B.G. is barred by laches from challenging the Division's authority to file the guardianship complaint. We recognize that B.G. filed a motion in September 2010, for the return of the child premised on the absence of a finding of abuse or neglect, and he renewed the motion in December, asserting at the December 16, 2010 hearing that he was constitutionally entitled to the return of his child in the absence of a finding of abuse or neglect. However, at the same proceeding, co-counsel conceded the Division was properly focused on restoring visitation, and the Division was "probably on reasonably solid ground in not returning the child[.]" B.G. did not expressly argue the Division needed to file a new complaint for care and custody after the remand. He did not challenge the Division's authority to file the guardianship complaint, although he subsequently sought resumption of visitation before trial.
In F.M., supra, the Court relied on laches in rejecting a parent's argument that the Division lacked the required "care or custody" of her children before filing the guardianship complaint that ultimately led to an order terminating parental rights.
No one questions that [the Division] was required to have "care or custody" of the children before initiating a guardianship complaint in this case. See N.J.S.A. 30:4C-15(c). However, for the first time on appeal, Fernanda claimed that [the Division] had no right to file a guardianship complaint because [the Division] did not have the requisite "care or custody" over Quinn or Troy, Jr., and therefore the four-day guardianship hearing should be declared a nullity. First, Fernanda had notice and an opportunity to be heard — the very essence of due process. Second, at any one of her court appearances, or at any time in between, she could have challenged [the Division's] right to assume "care or custody" of her children and demanded a factfinding hearing. This she did not do. By Fernanda's logic, even if [the Division] had properly proven at the guardianship hearing that termination of her parental rights was in the best interests of her children, that outcome would have to be reversed because she remained silent about [the Division's] purportedly misbegotten assumption of "care or custody." Our law does not compel such an absurd result.
[211 N.J. at 444-45.]
Likewise, it would be an absurd result to declare the guardianship trial a nullity because a hearing was not held pursuant to N.J.S.A. 30:4C-12 to establish the prerequisites for the care and custody of J.M.G. That is especially so under the circumstances of this case — where the case was returned to the trial court on remand; we had affirmed a prong one finding; the parties conceded that visitation needed to precede consideration of unification; and both we and the Supreme Court stayed visitation pending reports. Even if there were a violation of a statutory command, that does not compel nullification of a trial. "Delay of permanency or reversal of termination based on the Division's noncompliance with its statutory obligations is warranted only when it is in the best interests of the child." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J.Super. 568, 581 (App. Div. 2011) (citation omitted).
Further, the requirements set forth in N.J.S.A. 30:4C-12 for periodic review and extension of the Division's authority to intervene were satisfied. See N.J.S.A. 30:4C-12 (stating that an order for care and custody "shall not be effective beyond a period of six months from the date of entry unless the court, upon application by the division, at a summary hearing held upon notice to the parent . . . extends the time of the order"). The purpose of the periodic hearings "is to require the Division to demonstrate that continued care and supervision [are] still in the best interests because there is a need to ensure the child's health and safety." N.J. Div. of Youth & Family Servs. v. T.S., 426 N.J.Super. 54, 66-67 (App. Div. 2012). The court here held a plenary hearing in January and February 2011, and an extensive permanency hearing in July and August. After both hearings, the court determined that continued care and custody of the child should remain with the Division. The court entered numerous other orders continuing the Division's care and custody of J.M.G.
In sum, we reject the argument that the Division lacked authority to file a guardianship complaint, rendering the results of the trial a nullity.
We turn to consider the court's finding that the Division satisfied the four prongs of the best interests test.
We consider first defendants' challenge to the court's determination that prong one was satisfied. Judge Bernstein relied on the law of the case doctrine in finding that the parties were bound by our decision in V.M. II, affirming the finding of prong one in the first guardianship trial. Defendants argue that the law of the case doctrine does not apply. Addressing prong one anew, defendants assert it was not satisfied. We disagree.
The court did not err in considering our decision regarding prong one to be the law of the case. Under the law of the case doctrine, "a legal decision made in a particular matter should be respected by all other lower or equal courts during the pendency of that case." Lombardi v. Masso, 207 N.J. 517, 538 (2011) (internal quotation marks and citation omitted); see Sisler v. Gannett Co., Inc., 222 N.J.Super. 153, 159 (App. Div. 1987) (holding that law of the case doctrine requires judges to respect unreversed decisions made during trial by same court or higher court regarding questions of law), certif. denied, 110 N.J. 304 (1988). "The doctrine is grounded in the policy that once an issue is litigated and decided in a suit, relitigation of that issue should be avoided if possible." Ibid. (citation omitted). "'Law of the case' most commonly applies to the binding nature of appellate decisions upon a trial court if the matter is remanded for further proceedings, or upon a different appellate panel which may be asked to reconsider the same issue in a subsequent appeal." State v. Hale, 127 N.J.Super. 407, 410 (App. Div. 1974) (citations omitted).
A trial court has little discretion to ignore a prior appellate court decision. Sisler, supra, 222 N.J.Super. at 160. Rather, "if an issue . . . has been determined on the merits in a prior appeal it cannot be relitigated in a later appeal of the same case, even if of constitutional dimension." Washington Commons, LLC v. City of Jersey City, 416 N.J.Super. 555, 564 (App. Div. 2010) (citation omitted), certif. denied, 205 N.J. 318 (2011); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 1:36-3 (2013) (noting that "[c]learly, when an appellate court has decided an issue, its decision, even if not final in terms of the controversy, establishes the law of the case").
Applying these principles, the trial court did not err. We found sufficient support for the trial court's findings that V.M.'s combative behavior during delivery, psychiatric history, refusal to take prescribed medication, and inability to understand J.M.G.'s behavioral cues, exposed J.M.G. to a risk of harm. We also affirmed the trial court's finding that, notwithstanding B.G.'s acknowledged fitness as a parent, he exposed J.M.G. to harm because he failed to provide a safe home, and failed to acknowledge V.M.'s mental illness. Those findings were the law of the case.
B.G. and V.M. assert circumstances changed substantially after the trial court's finding in the first trial. However, that does not undermine the finding regarding V.M.'s and B.G.'s past behavior. Prong one may be satisfied by retrospective consideration of the parental relationship. It is enough if the "child's safety, health, or development has been . . . endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1) (emphasis added).
Any asserted change in defendants' circumstances, their willingness and ability to eliminate the harm to J.M.G., and provide her with a safe and stable home, pertain to prong two. We turn to consider those and other aspects of the second prong.
The second prong "relates to parental unfitness, " which may be established by demonstrating that: (1) "the parent is 'unwilling or unable to eliminate the harm'"; or (2) "the parent has failed to provide a 'safe and stable home'" and "a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). "Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance" when analyzing prong two. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 437 (App. Div. 2009). Under the second prong of the best interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" their child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid.
This harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). In applying the second prong, the court considers "whether delay in permanency will cause further harm and whether the child has bonded to his or her foster parents to the extent that separation from them would in itself 'cause serious and enduring emotional or psychological harm to the child.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 507 (2004) (quoting N.J.S.A. 30:4C-15.1(a)(2)). "[T]he issue becomes whether the parent can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J.Super. 418, 434 (App. Div. 2001) (citation omitted).
"The absence of physical abuse or neglect is not conclusive[.]" A.W., supra, 103 N.J. at 605 (quoting In re Guardianship of R.G. & F., 155 N.J.Super. 186, 194 (App. Div. 1977)) (referring to prong one); see also A.G., supra, 344 N.J.Super. at 440 ("Neither A.G. nor R.L. has harmed the child, nor is there any evidence to show that they would intentionally harm the child. But that is not the test."), certif. denied, 171 N.J. 44 (2002). Nor is the State required to establish the parent is morally to blame. A.G., supra, 344 N.J.Super. at 439 (terminating parental rights of mentally ill parent).
We have noted that instability and lack of permanency adversely affect the development of a child, and the child's best interests cannot be sacrificed because of a parent's inability to address potential future harms, despite his or her willingness to try. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J.Super. 76, 111 (App. Div.) ("[T]he . . . statute reflect[s] reforms acknowledging the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child."), certif. denied, 180 N.J. 456 (2004).
While "[m]ental illness, alone, does not disqualify a parent from raising a child[, ]" F.M., supra, 211 N.J. at 450, we may consider the illness's impact on the child. "[I]t is a different matter if a parent refuses to treat his [or her] mental illness, the mental illness poses a real threat to a child, " and the other parent "is unwilling or incapable of following court orders to shield her [or his] child from that danger." Id. at 450-51. "[A] psychiatric disability can render a parent incapable of caring for his or her children." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J.Super. 77, 94 (App. Div. 2008) (citation omitted). We have previously recognized the sad reality that a morally blameless parent's significant, but intractable mental disabilities may render him or her unable to parent. See A.G., supra, 344 N.J.Super. at 439.
Also, while one parent's conduct or disability is not imputed to the other, a court may consider a parent's inability to protect a child from the harmful effects of the other parent's conduct. Compare F.M., supra, 211 N.J. at 450-52 (stating a mother's parental rights can be terminated if she is incapable and unwilling to protect her children from an abusive spouse); and M.M., supra, 189 N.J. at 288-90 (holding that the harmful conduct of the mother was relevant in determining the parental fitness of the father, because both parents continued to live together), with N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 607-08 (2007) (holding the threat the father posed to the child was improperly considered in terminating mother's parental rights because she stopped living with the father and was able to prevent the father from having unsupervised visits with the child). "A parent is unfit if he or she is unable or unwilling to prevent harm to the child irrespective of the source of the harm." M.M., supra, 189 N.J. at 289 (citations omitted).
The evidence established that V.M. suffered from significant mental illness, which would pose a threat of harm to J.M.G. Although V.M. presented evidence that she suffered only from PTSD, there was ample contrary credible evidence that she suffered from much more disabling mental illness, consisting of schizoaffective disorder. The evidence included: hospitalization records of delusional and psychotic episodes; records of contacts with police reflecting delusions; the nature of her medications; and the opinions of the Division's and Law Guardian's experts, whom the court found significantly more credible than defendants' experts.
There was also sufficient credible evidence to support the conclusion that V.M. had not adequately acknowledged and addressed her mental illness, and her resulting behavior. The Division presented proof that both defendants were not candid with the court about the nature of her illness and her hospitalizations. Latimer found V.M.'s denial of past psychotic behavior to be a serious symptom because it demonstrated her conscious decision to not deal with her illness. He also opined it was likely V.M. was not compliant with her medication based on the nature of her symptoms when she was hospitalized in 2009.
V.M.'s illness posed a threat of harm to J.M.G. Also, Dyer, Latimer, and Jewelewicz-Nelson opined that V.M. lacked the empathy necessary to understand J.M.G.'s distress. Latimer believed V.M. could not mitigate the harm J.M.G. would experience if separated from her foster parents. Kohutis noted V.M.'s inability to relate to J.M.G. and to understand the child's needs and experiences, as well as her inability to be emotionally supportive and empathic with the child. Jacobsen also noted V.M.'s lack of empathy for J.M.G.'s situation.
Both defendants believed J.M.G. pined for them, and minimized the distress she suffered after visitation in March 2011. The evidence of J.M.G.'s distress after visiting with V.M. and B.G. in March 2011 cannot be divorced from defendants' actions, which led to J.M.G.'s removal after birth, the trial court's suspension of parenting time in 2009, and the formation of a bond with the foster parents.
There was substantial evidence in the record — consisting of the opinions of Dyer, Latimer, Jewelewicz-Nelson and Kohutis — to support the court's finding that V.M. did not have the ability to parent J.M.G. now nor in the foreseeable future. Notably, Jewelewicz-Nelson found V.M. more impaired in late 2011 than a year earlier.
Turning to B.G., the evidence also supported the court's conclusion that B.G. was unwilling and unable to eliminate the harm facing J.M.G., because he failed to recognize his wife's disabilities, and was unlikely to shield J.M.G. Dyer and Jewelewicz-Nelson found B.G. had a personality disorder with schizotypal and dependent features. The expert opinions and other evidence supported the conclusion that B.G. concealed, denied and minimized V.M.'s illness, and failed to recognize her limitations in caring for J.M.G. Dyer said B.G.'s support for V.M.'s delusions arose from his dependence on her and from the schizotypal features of his personality. Also, both Jewelewicz-Nelson and Dyer doubted B.G.'s ability to help J.M.G. overcome the distress if separated from her foster parents. Further, B.G. would not protect J.M.G. if V.M. suffered another psychotic episode because his history had been to conceal V.M.'s illness and aid and abet her delusions. Even defendant's own expert, Burr, noted B.G.'s tendency to minimize V.M.'s illness and dismiss the importance of her psychotic behavior.
Although B.G. participated in therapy, Bromberg wrote that B.G. lacked an understanding of the emotions J.M.G. was likely experiencing. Bromberg expressed concern over B.G.'s limited parenting capacity and the less safe and stable environment B.G. would offer J.M.G. compared to the foster home, as described by the Division. Biller cautioned that "[w]hile [B.G.] is demonstrating therapeutic progress it is uncertain if he has internalized an understanding of the significance of his wife's emotional functioning, the negative impact her emotional functioning can have on her parenting capacity, or the emotional experience of his daughter and her attachment experience." Although Biller opined that B.G. appeared to possess the awareness to serve independently as a caregiver, he stated his opinion was based on B.G.'s representation that V.M. no longer had any mental health concerns. He explained: "Should [B.G.'s] perception be less than accurate, concern would exist regarding his parenting capacity as it would reflect an impeded ability for him to be partial in assessing the risk presented by [V.M.] to their daughter."
In his testimony, B.G. himself misstated and minimized V.M.'s psychiatric history, stating she was admitted to the hospital only once in 2009; denying she made delusional remarks; and denying her claim to be the child of John Kennedy and Marilyn Monroe. He also denied that a State Police officer testified at the 2009 visitation hearing about threatening letters that V.M. had written. By these statements, B.G. demonstrated that he was still minimizing the severity of V.M.'s illness and concealing important facts from the court. Moreover, B.G. testified that J.M.G. was suffering tremendously in her foster home and she would continue to suffer until she was returned to him. Incredibly, he believed that when J.M.G. called out for her mommy and daddy in the middle of the night, she was calling for him and V.M. He did not think she would suffer a catastrophic loss if removed from her foster home. This testimony showed that B.G. lacked an understanding of J.M.G.'s situation despite having worked for several months on that specific issue with Biller.
B.G. claims that the Division failed to provide him with support to implement his reunification plan. However, there is sufficient evidence to support a contrary conclusion. B.G. proposed a reunification plan under which he would work from home and be available at all times to supervise J.M.G. He would also hire a housekeeper to help maintain the apartment and care for the child. However, B.G. apparently lacked the financial resources to hire a housekeeper or a nanny.
As to both defendants, there was substantial, credible evidence in the record that "the delay of permanent placement [would] add to the harm." N.J.S.A. 30:4C-15.1(a)(2). Judge Bernstein credited experts who opined that J.M.G. was bonded to her foster parents; J.M.G. continued to suffer significant negative effects from the uncertainty in her life; there was little prospect that defendants could reunify with J.M.G. without causing J.M.G. permanent harm; and J.M.G. desperately needed permanency. Moreover, separating J.M.G. from her foster parents would cause her substantial harm, because of her strong bond to them. See N.J.S.A. 30:4C-15.1(a)(2) (stating that harm under prong two includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child").
In sum, the court's prong two finding is adequately supported by evidence of V.M.'s unabated mental illness; B.G.'s minimization, or denial; his inability to understand and empathize with J.M.G.; his inability to place his daughter's needs ahead of his wife's; his failure to present a realistic parenting plan; J.M.G.'s strong bond to her foster parents; and her strong need for permanency.
The third prong of the best interests test requires the Division to undertake reasonable, but not necessarily successful, efforts to reunite the family. In re Guardianship of DMH, 161 N.J. 365, 393 (1999). "That prong of the standard contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. "Like considerations of parental fitness, an evaluation of the efforts undertaken by DYFS to reunite a particular family must be done on an individualized basis." DMH, supra, 161 N.J. at 390.
The third prong also requires the court to consider alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a). Such alternatives may include placement of the child with a relative caretaker, N.J.S.A. 30:4C-12.1(a), or the establishment of a kinship legal guardianship, N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222 (2010).
In determining that the Division established the third prong by clear and convincing evidence, the court relied on the parties' stipulation that the Division made reasonable efforts to provide defendants with services. Notwithstanding the stipulation, the court found the Division had made extensive efforts to provide services and the reasonableness of its efforts was essentially incontestable.
"In general, 'stipulations permit parties in a civil case to agree on relevant facts, thereby narrowing the area of dispute requiring the production of evidence and promoting the efficient administration of justice.'" N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J.Super. 96, 112 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 265 (App. Div. 2002)). "A stipulation 'must be definite and certain in its terms and the consent of the parties to be bound by it must be clearly established.'" Ibid. (quoting J.Y., supra, 352 N.J.Super. at 265); accord N.J. Div. of Youth & Family Servs. v. M.D., 417 N.J.Super. 583, 610 (App. Div. 2011). The stipulation here satisfied those requirements. Defendants were present when the stipulations were discussed and entered by their counsel. Defendants' stipulation was binding on them.
We recognize the stipulation was not binding on the court as fact-finder. State v. Wesner, 372 N.J.Super. 489, 494 (App. Div. 2004) ("A stipulation of fact is nothing more than evidence that is uncontroverted. . . . [A] jury is free to reject any evidence, including that which is uncontroverted." (citation omitted)), certif. denied, 183 N.J. 214 (2005). However, the court chose to rely on the stipulation, having determined there was more than sufficient evidence in the record, with which he was familiar, to find the Division made reasonable efforts to reunify the family.
J.Y., supra, and N.D., supra, do not compel a different result. In J.Y., the defendants' "amorphous" stipulation, prompted by the court, resulted in a waiver of their right to a fact-finding hearing and an admission of an act of abuse or neglect. 352 N.J.Super. at 263. In N.D., supra, we also found insufficient a defendant's "vague" stipulation to services under Title 30. 417 N.J.Super. at 112-13. Here, the stipulation was definite, the court did not apparently actively seek it, defendants did not inculpate themselves in any way, the court did not abdicate its essential fact-finding role, nor did defendants waive their right to a trial.
In any event, the invited error doctrine prevents defendants from complaining now about the court's acceptance of the stipulation. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339-40 (2010) (finding that counsel's failure to object to the admission of documents precluded the defendant from challenging the admissibility of those documents on appeal). In sum, we discern no error in the court's finding that the "reasonable efforts" element of prong three was met.
However, prong three also requires the court to consider alternatives to termination. N.J.S.A. 30:4C-15.1(a)(3).Defendants' stipulation did not address that element. The second part of the third prong requires the court to weigh available alternatives to termination of parental rights, such as relative placement for the child, which would obviate the need for termination of parental rights and adoption. L.J.D., supra, 428 N.J.Super. at 488-89. Another alternative the court might consider is a kinship legal guardianship. L.L., supra, 201 N.J. at 222.
At no time during the litigation did defendants propose that J.M.G. be placed with a friend or relative. Even on appeal, defendants suggest no alternative placement. The "alternative" that B.G. proposes — return of J.M.G. to him with child care arrangements and a safety plan — is not the type of alternative contemplated by the statute. Rather, it involves a reunification of the family, an "alternative" that the court considered and rejected when it found that termination of parental rights was in the best interests of the child.
In sum, there was sufficient evidence in the record to support the court's finding that prong three was met.
The fourth statutory element of the best-interests standard requires the Division to show that termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). Satisfaction of the fourth prong does not require that no harm be found. See K.H.O., supra, 161 N.J. at 355 (stating that "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties"). "The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." Ibid.
"[T]he child's need for permanency and stability emerges as a central factor." Id. at 357. "Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." F.M., supra, 211 N.J. at 453. The question is not whether a biological parent is worthy, but whether a child's interests will be best served by terminating the parental relationship. The Division must show "that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm." J.C., supra, 129 N.J. at 19 (citations omitted). "Weighing the potential harm that terminating [a child's] relationship with her [birth parents] against that which might come from removing her from her foster home is painfully difficult, but it is a decision that necessarily requires expert inquiry specifically directed to the strength of each relationship." Id. at 25.
In challenging the court's prong four finding, one or both defendants argue the judge failed to articulate sufficient findings of fact and conclusions of law under Rule 1:7-4; there was no bonding evaluation of defendants and J.M.G. to enable the court to make a comparative evaluation; and the lack of visitation impaired their ability to strengthen their own ties with J.M.G. We are unpersuaded.
There was substantial credible evidence in the record to support the court's prong four finding. Every expert who evaluated the bond between J.M.G. and the foster parents found it was strong. Dyer and Jewelewicz-Nelson opined that breaking that bond would inflict life-long emotional and psychological damage. Neither believed V.M. and B.G. were capable of mitigating the harm. Defendants had a history of minimizing J.M.G.'s bond to her foster parents, the harm J.M.G. would face if separated from them, and the challenge any caregiver would face to mitigate that harm. Indeed, Jewelewicz-Nelson opined the harm would be compounded if J.M.G. were placed with V.M. and B.G.
On the other hand, no expert testified that J.M.G. would suffer any long term emotional impact if defendants' parental rights were terminated. Jewelewicz-Nelson, Dyer and Groisser all emphasized J.M.G.'s need for permanency. Groisser and Jewelewicz-Nelson highlighted the damage done by the denial of permanency and continuing uncertainty in her life.
While the court's decision was succinct, we do not view it as insufficient. See Curtis v. Finneran, 83 N.J. 563, 570 (1980) ("Naked conclusions do not satisfy the purpose of R. 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." (citations omitted)). Judge Bernstein implied that his findings applied to both the second and fourth prongs. He articulated findings related to J.M.G.'s bonding with her foster parents and her negative reaction to her visit with defendants.
The court also did not err in declining to order a bonding evaluation of defendants and J.M.G., and reaching his prong four finding without one. We recognize that generally, comparative bonding evaluations are required. Although parental fitness was not an issue in J.C., supra, 129 N.J. at 25, the Court noted that the comparative analysis under prong four "necessarily requires expert inquiry specifically directed to the strength of each relationship." In A.R., supra, 405 N.J.Super. at 440, we stated that "we can envision very few scenarios in which comparative evaluations would not be required." However, there may be exceptional cases, and this is one.
The evidence supported the conclusion that a bonding evaluation would harm J.M.G. and provide little useful information. Dyer and Jewelewicz-Nelson both opposed a comparative bonding evaluation involving defendants. They opined it would harm J.M.G. — Jewelewicz-Nelson's testimony suggested it might prompt a psychotic episode and total breakdown. Neither expert believed a comparative evaluation would produce useful information. They were confident, based on the case history, that there was no significant bond between J.M.G. and defendants comparable to J.M.G.'s bond with her foster parents. Also, neither Brown nor Burr testified that a bonding evaluation between J.M.G. and her birth parents should have been performed.
Defendants argue they were prejudiced by the wrongful decision to deprive them of visitation. We recognize that, generally, the relative strength of a child's bonds with his or her foster parents and birth parents is affected by the opportunities for visitation. See I.S., supra, 202 N.J. at 182 (noting that a child who had lived with his foster parents for an extended period of time and saw his father only one hour a week was more strongly bonded with the foster parents). However, visitation was suspended in 2009 as a result of defendants' actions, as Judge Callahan found. Our court and the Supreme Court stayed Judge Bernstein's effort to jump start visitation pending a thorough analysis of the child's and defendants' readiness and related issues. The court ultimately ordered visitation. However, sufficient evidence supported the court's conclusion that J.M.G. suffered significant psychological harm as a result, and further visitation was denied. See V.C. v. M.J.B., 163 N.J. 200, 229 (stating that visitation may be denied where "it clearly and convincingly appears . . . [it] will cause physical or emotional harm to the children or where it is demonstrated that the parent is unfit"), cert. denied, 531 U.S. 926, 121 S.Ct. 302, 148 L.Ed.2d 243 (2000).
B.G. argues that he received ineffective assistance of counsel because his attorney stipulated that the Division had made reasonable efforts under prong three; declined to file additional applications for visitation or a bonding evaluation; and consented to the admission of 2009 and 2011 visitation hearing transcripts. V.M. also argues in a footnote that she received ineffective assistance of counsel due to her counsel's stipulation to the third prong of the best interests test.
A defendant in a termination of parental rights case has a constitutional right to effective assistance of counsel. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007). Claims of ineffective assistance in this context are assessed under the two prong standard governing collateral challenges to criminal convictions, which was established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). B.R., supra, 192 N.J. at 307-09. Under Strickland, supra, to establish a prima facie case that his counsel provided ineffective assistance, defendant must establish (1) his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068, 80 L.Ed.2d at 693, 698.
The B.R. Court also declared that claims of ineffective assistance of counsel in termination of parental rights cases should be raised on direct appeal, and in many cases will be resolvable on the appeal record alone. 192 N.J. at 310-11. The Court outlined the nature of proofs required:
As a practical matter, the appeal must be filed by an attorney other than trial counsel. Further, appellate counsel must provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases. For example, if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance
[Id. at 311.]
The Court presumed that claims of ineffective assistance may be resolvable without an evidentiary hearing if, for example, "the panel accepts as true appellant's representations regarding the lawyer's shortcomings but determines, on the basis of the full record, that the outcome would not have changed[.]" Ibid.
We need not determine whether defendants met the first prong of the Strickland test, in particular, whether defense counsel adequately conferred with their clients. We are unpersuaded, viewing the record as a whole, that but for the claimed shortcomings in counsel's performance, there is a reasonable probability the result would have been different. Had defense counsel declined to stipulate as to the Division's reasonable efforts, we are convinced the court would have justifiably reached the same conclusion based on the substantial evidence of the Division's efforts. The Division provided an array of services, which included psychological and psychiatric evaluations, therapy for V.M. and B.G., and play therapy and psychological evaluations for J.M.G. Although the Division opposed visitation at various stages in the history of the case, it dutifully implemented ordered therapy for both defendants and J.M.G. in order to begin therapeutic visitation.
Defendants' consent to the admission of the transcripts of the prior visitation hearings was not dispositive. The essential evidence in those hearings was still available to the Division and the Law Guardian, and could have been presented to the court. Finally, we are convinced that additional motions to renew visitation, or to conduct a bonding evaluation would have been futile, given the record and the court's prior decisions.
In sum, defendants cannot establish it was reasonably probable that the result would have been different but for their counsels' alleged ineffectiveness.
We briefly address B.G.'s argument that the Division's guardianship action was barred by principles of collateral estoppel and double jeopardy.
B.G. essentially argues that the determination in V.M. I that the Division failed to prove he had abused or neglected J.M.G. collaterally estopped the Division from alleging in the guardianship case that B.G. harmed J.M.G. under the first prong of the best interests test. We reject B.G.'s argument for two reasons. First, he did not raise the argument in advance of the first guardianship trial and waived it. Collateral estoppel is a branch of res judicata. State v. Gonzalez, 75 N.J. 181, 186 (1977) ("Collateral estoppel is that branch of the broader law of res judicata which bars relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action."). It is an affirmative defense. R. 4:5-4 (stating res judicata is an affirmative defense). Consequently, it is waived if not timely presented. See Kopin v. Orange Prods., Inc., 297 N.J.Super. 353, 375 (App. Div.), certif. denied, 149 N.J. 409 (1997).
Second, B.G. has not satisfied the prerequisites for applying collateral estoppel. The doctrine applies if:
 the issue decided in the prior action is identical to the one presented in the subsequent action, . . .  the issue was actually litigated — that is, there was a full and fair opportunity to litigate the issue — in the prior action, . . .  there was a final judgment on the merits, . . .  the prior determination was essential to the judgment, and  the party against whom preclusion is asserted was a party, or in privity with a party, to the proceeding.
[Perez v. Rent-A-Center, Inc., 186 N.J. 188, 199 (2006) (internal citation and quotation omitted), cert. denied, 549 U.S. 1115, 127 S.Ct. 984, 166 L.Ed.2d 710 (2007).]
The issue decided in the Title 9 case — whether defendant abused or neglected J.M.G. during and after her birth — is not identical to the issue whether J.M.G.'s safety, health or development was endangered by her relationship with B.G. Proof of the first prong of the best interests test does not require proof of actual harm; it suffices to show the risk of harm. DMH, supra, 161 N.J. at 383 ("Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect" (citation omitted)) In any event the doctrine of collateral estoppel is subject to exceptions including where "[t]here is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action" Restatement (Second) of Judgments § 28(5) (1982) While JMG was a party to the Title 9 action application of issue preclusion would disserve the public interest in protecting the child's best interests
Finally principles of double jeopardy do not apply to the State's efforts to terminate parental rights and protect the best interests of a child "Unlike criminal defendants natural parents have no 'double jeopardy' defense against repeated state termination efforts If the State initially fails to win termination it always can try once again to cut off the parents' rights after gathering more or better evidence" Santosky v Kramer 455 U.S. 745 764 102 S.Ct. 1388 1400 71 L.Ed.2d 599 613 (1982)
Defendants' remaining arguments lack sufficient merit to warrant discussion in a written opinion R 2:11-3(e)(1)(E)