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New Jersey Division of Child Protection & Permanency v. G.R.

Superior Court of New Jersey, Appellate Division

November 22, 2013

G.R. and M.A., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF A.P.R., A Minor.


Submitted November 4, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-60-12.

Joseph E. Krakora, Public Defender, attorney for appellant G.R. (A-2757-12) (Peter Neely Milligan, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant M.A. (A-2758-12) (Gilbert G. Miller, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).

Before Judges Parrillo, Harris, and Guadagno.


Defendants M.A. (Martha), [1] and G.R. (George), the biological parents of A.R. (Alice), appeal from the January 30, 2013 judgment of guardianship terminating their parental rights to the child. In their appeals, which we have consolidated, defendants contend that plaintiff New Jersey Division of Child Protection and Permanency (Division) failed to prove each prong of the best interests test of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. After reviewing the evidence presented to the trial court, and in light of prevailing legal standards and arguments presented, we affirm, substantially for the reasons stated by Judge George E. Sabbath in his thorough and well-reasoned forty-two page oral decision.


We derive the following facts from the trial record. Alice was born on December 1, 2009. Shortly after her birth, hospital staff grew concerned upon learning that both Martha and George had a history of schizophrenia. A staff member contacted the Division, and after an investigation, the Division determined that Alice was not at risk and closed its case.

Over the next few months, the Division received several additional referrals related to Martha and George. On December 13, 2010, the Division received an allegation that George struck Martha, gave her a black eye, and threw her medication into the street. The Division caseworker responded to Martha's apartment where R.A. (Rachel), Martha's mother, also resided.[2] The caseworker found that "the family's living room area [was] completely full of the family's belongings [and] there was barely any room to walk." Martha refused to provide details surrounding the allegation of domestic violence. The Division ultimately concluded that Alice was not present during the altercation and there was no substantiation of neglect. The Division did recommend that Rachel allow the People Care agency (People Care) to assist in cleaning the apartment, and Rachel agreed.

On January 11, 2011, People Care contacted the Division, reporting that Rachel had not been providing consistent access to the apartment. The People Care worker also related that Martha had become physically aggressive with Rachel by throwing a jar of baby food at her. Martha also was verbally abusive toward Rachel's landlord. There were at least four more unsuccessful attempts by People Care to access the apartment in January.

In March 2011, the Division received a referral of alleged medical neglect stemming from Rachel's refusal to take Alice to the doctor. Later that month, the Division determined the apartment's physical condition posed a threat to Alice and initiated a safety protection plan with the family. Pursuant to the plan, Rachel and Martha agreed to allow People Care and the Emergency Child Abuse Program (ECAP) to service the apartment.

On March 25, 2011, the Paterson Police Department (PPD) contacted the Division after being alerted by a People Care worker that Martha threatened to harm the worker. Division caseworkers met PPD officers at the home. The officers told the caseworkers that they considered the home hazardous to Alice. The People Care workers explained that they came to clean the home but were not allowed in. The caseworker noticed that all of the food in the refrigerator appeared "dirty and spoiled, " a baby bottle of juice had "chunks of mold on the nipple, " food and bags of trash were scattered throughout the apartment, and a box containing vomit was found outside the bedroom.

The Division conducted an emergency Dodd removal[3] and placed Alice in a foster home. At a pre-placement physical, Alice was diagnosed as physically delayed due to excessive periods spent in the crib.

Rachel, Martha, and George were granted weekly visitation with Alice. Rachel's visits were unsupervised, while Martha and George were supervised by the Division when visiting Alice. Although Martha visited Alice regularly, her visitation was temporarily suspended due to her behavior. As described by the caseworker:

She would think that people were talking about her, and she would yell at other people that were in the office and make claims that she was, that they were talking about her.
There was an incident where she threw a toy across the room, the waiting room and had to be escorted out by the Human Service Police.

George's visits with Alice were sporadic. Between April 2011 and January 2013, he visited Alice only three times.

Martha underwent a psychiatric evaluation with Dr. Samiris Sostre who diagnosed her with "acute symptoms of delusions and hallucinations consistent with schizophrenia." Dr. Sostre concluded that, based on her symptoms, Martha was "not fit to parent her child at the present time due to her symptoms of schizophrenia. Schizophrenia is a chronic psychotic disorder with guarded prognosis. [Martha] continues to experience symptoms of her disorder, despite treatment."

Rachel[4] underwent a psychological evaluation with Dr. Eric Kirschner, who concluded that Rachel possessed "schizotypal qualities marked by odd speech, thoughts and behaviors." She had also been the victim of physical and verbal abuse by Martha and her former husband after which she repeatedly failed to protect herself from others' harm. She "failed to adequately address the safety and welfare of [Alice] from the harm posed by [Martha]. . . . [Rachel] lacked insight into the risk of harm that [Martha] posed to [Alice]." Dr. Kirschner recommended that Rachel establish independent housing, attend individual psychotherapy sessions, parenting classes, and, should Alice be placed in her care, that in-home supportive services be implemented.

The Straight and Narrow Family Success Center (Straight and Narrow) reported that Rachel had attended seven of ten sessions provided as part of its Incredible Years parenting program but had not completed the course, as attendance at eight sessions is required. Straight and Narrow reported that Martha had attended one session, and George none.

On August 3, 2011, Rachel began participation in Family Connections' Reunity House program (Reunity House), a program that incorporates therapeutic supervised visitation, parenting group, and skills training, as well as family and peer support. During the program's first phase, Rachel was supervised by a clinician during her interactions with Alice. Although Rachel made some progress in this program, there continued to be concerns as to her ability to care for Alice. A clinician's report summarizing Rachel's treatment indicated

[Rachel] has made improvements with her visitations such as talking to [Alice] more, showing emotions, and verbalizing minor direction. It appears that although [Rachel] meets [Alice]'s physical needs, there is a question whether she can fully protect her from harm. . . . [T]here is a concern of what ongoing care and interaction would entail.

In August 2011, Rachel began counseling sessions with Full Circle Counseling (FCC), and continued there until July 2012. Similar to her participation in Reunity House, Rachel's therapist initially noted that Rachel made strides in organizing and cleaning the apartment but later reported that she did not see much progress, and concluded that cleaning is too big of a job for Rachel to tackle alone.

When the therapist attempted to communicate to Rachel the importance of the state of the apartment, Rachel appeared to be distracted and unfocused and would change the subject. During an April 20, 2012 follow-up visit, the therapist told Rachel that the apartment was functional.

Rachel's attendance became sporadic thereafter. After a missed session on July 13, 2012, the therapist related concerns focusing on Rachel's lack of understanding of the urgency in getting the apartment cleared out and in proper condition. She concluded that Rachel was not doing what had to be done to return Alice to the home.

On May 1, 2012, Rachel underwent a second psychological evaluation with Dr. Kirschner. Dr. Kirschner concluded that although Rachel "displayed fewer schizotypal qualities" he was concerned about her lack of progress in organizing her home, noting "it has been over one year since [Alice]'s removal and the task is yet to be completed."

On August 3, 2012, the Division issued a "rule out" letter to Rachel "based on the Division's continued concern regarding the lack of progress rectifying the hazards in the home as well as [Rachel's] continued unwillingness to allow the Division into the home[.]" Rachel unsuccessfully appealed that decision.

In August 2012, the Division referred Martha to A Time for Change Counseling Services. Martha was also undergoing treatment with a psychiatrist on a monthly basis.

On September 27, 2012, Martha underwent a psychological evaluation with Dr. Kirschner. George was also scheduled for an evaluation that day, but did not attend. Dr. Kirschner's report noted the following:

[Martha] lacked a general understanding of normal child growth and development. . . .
Integration of the clinical data indicated that [Martha] is unfit to parent at this time and for the foreseeable future. She lacked the psychological capacity to adequately meet a child's needs for safety, nurturance, stability and guidance. It is this Examiner's opinion, based on a reasonable degree of psychological certainty that placement of [Alice] in [Martha]'s care would expose her to a heightened risk of harm.

Kirschner also performed a bonding evaluation between Alice and Martha on the same date and observed:

The quality of [Martha] and [Alice]'s interaction tended to be poor. There was little spontaneous conversation. [Alice] made poor eye contact with [Martha]. She exhibited minimal smiles or laughter. [Martha] appeared to put forth limited effort to engage [Alice]. Virtually no collaborative play was noted, whereby [Martha] tended to observe her child rather than engage her.
Overall, the data indicated that [Alice] had not formed a parent-child bond or attachment relationship with [Martha]. Moreover, the data indicated that [Alice] had not come to perceive her mother as her primary attachment figure. As such, [Alice] would not be expected to suffer psychological harm in the event that their relationship was to be severed.

Dr. Kirschner also performed a bonding evaluation with Alice's foster parents on October 4, 2012, and concluded

[Alice] had formed a parent-child bond and secure attachment relationship with her foster parents, whom she perceived to be her psychological parents and primary attachment figures whom she could trust and rely upon. . . . [I]t is clear that [Alice]'s bond and attachment to her foster parents is much greater than to [Martha].
The data indicated that [Alice] would be expected to experience serious and enduring harm if she were to be removed from the care of her foster parents and placed with her biological mother. It is this Examiner's opinion, based on a reasonable degree of psychological certainty that termination of [Martha]'s parental rights would not do [Alice] more harm than good. It is recommended that [Martha]'s parental rights to [Alice] be terminated . . . .

On October 22, 2012, the Division referred Martha to Adult Family Health Services (AFHS), a partial care program to receive psychiatric treatment and further therapy. AFHS informed the Division it was unable to proceed with Martha's psychiatric treatment, as Martha insisted that she did not want to be in the program.

Martha proposed placing Alice with a relative, Y.A., but after her initial contact with the caseworker, Y.A. failed to respond to a notice to contact the Division and was ruled out as a placement option.

George proposed his mother as a possible placement for Alice but the Division issued a rule-out letter to her, as she had indicated that she would continue to allow George to reside in her home if Alice was placed with her.

In May 2012, the Division filed a complaint for guardianship of Alice. Trial was held over four days in January 2013. The court heard the testimony of Dr. Kirschner, and caseworkers Philip Bradley and Erica Jersey. Neither defendant called any witnesses and only George provided limited testimony.

On appeal, both defendants challenge the sufficiency of the proof on each of the four prongs. In addition, George claims that the trial court forced him to testify, and then used that testimony to make certain conclusions prejudicial to him in the termination trial. The Law Guardian concurs with the decision of the trial court and supports termination of defendants' parental rights.


To prove that termination is in the best interests of the child, the State must demonstrate, by clear and convincing evidence, that each of the following four factors are satisfied:

(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 [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4)Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a)(1) to (4).]

Our review of the Family Part's factual findings and credibility determinations in a termination of parental rights matter is circumscribed. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). The general rule is that where a trial court's factual findings and credibility determinations are supported by "'adequate, substantial, credible evidence, '" an appellate court affords those findings substantial deference. Potomac Ins. Co. of Ill. v. Pa. Mfrs.' Ass'n Ins. Co., 215 N.J. 409, 421 (2013) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). Such deference emanates from the fact that the trial judge "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand[.]" N.J. Div. of Youth & Family. Servs. v. E.P., 196 N.J. 88, 104 (2008). Indeed, trial courts possess a "feel of a case" that simply eludes an appellate court's review of a cold record. Ibid. That is why appellate courts only overturn a trial court's factual determinations when those conclusions are so "clearly mistaken" or "wide of the mark" that the reviewing court is compelled to make its own factual findings, and avoid a miscarriage of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); see also Rova Farms Resort, Inc. v. Investory Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Once an appellate court determines that the trial court's findings do not sufficiently rise to this level of error, "its task is complete and it should not disturb the result, even [if] it has the feeling it might have reached a different conclusion were it the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964).

Martha argues that her parental relationship with Alice "did not inflict the serious harm upon [Alice] which would justify a termination of parental rights . . . ." She claims "the conditions in the apartment clearly did not rise to the egregious harm . . . which would justify a finding that [Martha]'s parental relationship with [Alice] had caused or will cause [Alice] harm."

Judge Sabbath heard extensive testimony concerning the condition of Rachel and Martha's apartment and concluded

those living conditions constituted an actual harm to the child by virtue of the fact that it would be dangerous conditions in the event there was a fire or that indeed these -- these, this debris would -- of such a nature that there might be health concerns with respect to respiratory conditions, that as I indicated access conditions and what was in those boxes and bags whether or not there could be something that was in, that could start fire is unknown.
But in any event, [it] doesn't take an expert to conclude that the child was living under circumstances where harm and risk of harm was likely. And in fact, was more than likely so that the first prong has been proved against [Martha].

Judge Sabbath's conclusions are supported by substantial and credible evidence in the record. Actual harm to Alice is not required. IMO Guardianship of D.M.H., 161 N.J. 365, 383 (1999); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 n.14 (1986). The conditions in Martha's apartment clearly posed a threat of harm to Alice.

Moreover, Alice's post-removal physical examination revealed that Alice had already developed standing and bouncing delays from the excessive periods spent in her crib. Despite the fact that Alice had matured to the point of transitioning out of her crib, the state of the apartment left no room for the child to enjoy any activity outside of the crib. Martha made no effort to ameliorate the unsanitary and hazardous living conditions that Alice was exposed to.

Relying on N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 116 (2011), Martha argues that the court's finding under the first prong is precluded under the doctrine of res judicata as the result of the determination by another judge that the Division failed to prove abuse and neglect at an earlier fact-finding. Martha's reliance on R.D. here is misplaced. In R.D., the trial judge in the Title Nine case found abuse or neglect by clear and convincing evidence and, in the course of a later Title Thirty case, the Division argued that the defendant should be barred from contesting a finding that he committed abuse or neglect. Id. at 97. The Court held that the doctrine of collateral estoppel could be successfully invoked in that circumstance, only if three factors were presented. Id. at 120-21. Of interest here, are the first and second factors. The first requires that the Title Nine court "provide advance notice to the parties that, if supported by the proofs, it will make its findings using the higher Title Thirty 'clear and convincing evidence' standard." Id. at 120. The second requires the Title Nine court to

make clear to the parties that, although the relief it may issue in the Title Nine portion of the proceedings is, by its nature, interim, the determinations made in respect of that interim relief--particularly those concerning harm to the child--may have preclusive effect on the final, permanent relief arising out of a Title Thirty proceeding.

[Id. at 121.]

The record on appeal contains no evidence that the Title Nine judge ever advised either party that the claim of abuse or neglect would be adjudicated through the use of the higher standard or that the finding may have preclusive effect on any subsequent Title Thirty proceeding.

Moreover, the litigation continued after the Title Nine hearing. Additional services were provided to defendants, a permanency hearing was held, and the guardianship complaint was filed. By the time trial began in January 2013, additional evidence of harm to Alice, specifically evidence regarding both defendants' mental health issues that was not available to the fact-finding judge, was presented to Judge Sabbath. For these reasons, the Title Nine judge's conclusion can have no further force and effect.

George also argues that the trial court's determination under N.J.S.A. 30:4C-15.1(a)(1) was improper. The record amply supports Judge Sabbath's findings that George harmed Alice by failing to provide for her, especially after she was removed from Rachel and Martha. As Judge Sabbath found, "[George] did not provide for his child. He did not make himself available to protect his child from being placed in foster care. As a result, she had to be removed and placed in foster care . . . ." We find no support in the record for George's claim that he attempted to remove Alice from the sub-standard living conditions in the apartment.

George maintains that Judge Sabbath relied exclusively on his hospital records to make his determination. Although Judge Sabbath considered hospital records revealing George's diagnosis as a schizophrenic, he also noted George's inability to care for or plan for Alice and recognized that George is currently dependent on his own mother for his care.

Finally, George failed to engage in services offered by the Division throughout these proceedings. He attended none of the parenting sessions offered at Straight and Narrow, he failed to attend any of the Division's mandated psychiatric examinations, and only sporadically engaged in visitation with Alice. Judge Sabbath's finding that George failed to eliminate any harm that he may have posed to Alice or mitigate harm stemming from the living conditions present in Martha's apartment is well-supported in the record.

Martha's argument that the Division failed to make reasonable efforts to reunify her with Alice is without merit. Judge Sabbath's decision extensively relied on documentation by the Division case workers that indicated numerous services were provided to Martha including People Care, ECAP, psychological evaluation by Dr. Kirschner, the psychiatric evaluation by Dr. Sostre, Full Circle Counseling, Straight and Narrow and Family Connections. With respect to Straight and Narrow, Judge Sabbath noted that Martha only went to one of the required ten sessions and her visitation was suspended due to her conduct at visitation. Clearly, the Division made reasonable efforts to provide a host of services to aid Martha within the framework provided by N.J.S.A. 30:4C-15.1(c).

George claims that the Division's recommended psychological examinations and referrals to attend parenting class should not be considered "services" under the third prong. We find this argument to lack sufficient merit to warrant further discussion other than to note that George failed to take advantage of the services offered by the Division. As Judge Sabbath noted,

the Division provided for psychological evaluation for [George]; however, he failed to appear. Two appointments were made for him and he failed to appear, so there is no evaluation from Dr. Kirschner as a result of [George] failing to appear.
[The] Division provided Straight and Narrow parenting classes for [George], he failed to appear.

These findings are amply supported by the record.

The second component of N.J.S.A. 30:4C-15.1(a)(3) addresses whether alternatives to termination were considered. N.J.S.A. 30:4C-12.1(a) mandates that the Division "initiate a search for relatives who may be willing and able to provide the care and support required by the child."

Martha argues that the court effectively eliminated Rachel from the litigation by dismissing the FN petition and finding that the Division's rule-out of Rachel was reasonable. As we have noted, the record indicates that the Division provided extensive services to Rachel. The psychological evaluations, parenting classes and homemaking services provided by the Division indicate that the agency considered Rachel a viable placement resource. The Division made these services available to Rachel for over a year. Ultimately, it was Rachel's inability to provide safe housing for Alice and overcome her own mental health issues, that led to the Division ruling her out as a placement resource.

The Division also explored alternative placements recommended by defendants. Martha identified Y.A. as a potential placement but she was ruled out for failure to contact the Division. The Division explored A.S. as a potential alternative, but ruled her out since she refused to parent Alice without George present in her home.

The Division clearly pursued multiple alternatives, some at the suggestion of both George and Martha, assessed their viability as parental alternatives, and made determinations based on their progress in the Division's recommended programs.

The final prong of N.J.S.A. 30:4C-15.1(a) addresses whether the termination of parental rights will not do more harm than good. The essential question to be addressed under the 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." In Re Guardianship of K.H.O., 161 N.J. 337, 355 (1999). To balance these two relationships, "the court must inquire into the child's relationship both with [the] biological parents and [the] foster parents." Ibid. Where the child's bond with the foster parents exceeds the bond with the natural parents, "that evidence will satisfy the requirement . . . that termination of parental rights will not do more harm than good to the child." Id. at 363. The central factor undergirding the court's entire analysis is the child's need for permanency and stability. Id. at 357.

Dr. Kirschner's bonding evaluation indicated that Alice's bond with Martha was "poor" and no parent-child attachment relationship had been formed. He determined that Alice did not perceive her mother as her primary attachment figure and Alice would not suffer psychological harm in the event that their relationship was severed.

In contrast, a bonding evaluation performed with Alice and her foster parents noted that Alice had formed a parent-child bond and secure relationship with her foster parents, whom she perceived to be her psychological parents and primary attachment figures, whom she could trust and rely on.

Judge Sabbath relied extensively on Dr. Kirschner's report to support his conclusion:

[Alice] views the foster parents as psychological parents, and [Alice] is bonded significantly with the foster parents to the extent that removing [Alice] from the foster parents would suffer the child, would cause the child to suffer serious and enduring harm and that [Martha] would not have the -- the capacity to ameliorate them.

The court relied on and adopted the testimony of an expert psychologist who had performed the two bonding evaluations, and concluded that Alice's bond with her foster parents exceeded that with Martha. Judge Sabbath's finding that it would not do more harm than good to terminate both parents' parental rights is supported by substantial credible evidence in the record.

George does not challenge the findings under prong four, but does claim that the trial court improperly took his testimony and used that testimony to draw prejudicial conclusions in the Title Thirty termination proceeding.

The court entered a default against George on October 22, 2012, after he failed to appear for a case management conference. He failed to appear for the first day of the guardianship trial but was represented by counsel. On January 17, 2013, the second day of trial, George appeared and moved to vacate the default. George testified that he did not feel well on January 16, 2013, and could not recall why he failed to appear in court on October 22, 2012. George's counsel argued that George suffered from memory loss. Judge Sabbath vacated the default.

George now claims that Judge Sabbath "inappropriately forced" him to testify and then used that testimony to form prejudicial conclusions, which led to the improper admission of his medical records at the guardianship trial.

In admitting George's medical records, Judge Sabbath made a finding that the records were certified from the mental health clinic and satisfied the evidentiary requirements of N.J.R.E. 803(c)(6). Moreover, caseworker Jersey testified at trial that George signed a release permitting the Division to access his medical records. We find no support in the record for George's claim that the court forced him to testify or made improper use of that testimony.


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