New Jersey Division of Child Protection and Permanency Vs.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4905-14T2

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
May 6, 2016
v.
APPELLATE DIVISION

K.S.,

Defendant-Appellant,

and

A.L., SR.,

Defendant.
__________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF A.L., JR., and A.K.L.,

Minors.
__________________________________

Submitted April 6, 2016 – Decided May 6, 2016

Before Judges Fuentes, Koblitz, and Gilson.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FG-16-72-15.

Joseph E. Krakora, Public Defender, attorney
for appellant (Christine Olexa Saginor,
Designated Counsel, on the brief).
 Robert Lougy, Acting Attorney General,
attorney for respondent (Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Ramiro A. Perez, Deputy Attorney
General, on the brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Nancy P.
Fratz, Assistant Deputy Public Defender, on
the brief).

The opinion of the court was delivered by

KOBLITZ, J.A.D.

Defendant-appellant K.S.,1 the biological mother of four

young children,2 appeals from the termination of her parental

rights.3 Before the Family Part's decision was rendered, she was

precluded from testifying because she appeared after the close

of evidence. We reverse and remand to give the mother the

opportunity to present her testimony.

We will only present a brief summary of the background

underlying the termination of K.S.'s parental rights. K.S.'s

mother suffered from mental illness and was hospitalized

throughout these proceedings. K.S. had a poor relationship with

her father. She was sexually abused by her father and two

1
We use initials to protect the confidentiality of the
participants in these proceedings. See R. 1:38-3(d)(10), (12).
2
Only K.S.'s two oldest children are subject to this appeal.
3
A.L., Sr., the biological father of the two oldest children,
could not be found and an affidavit of diligent inquiry was
filed with the trial court. A default judgment of guardianship
terminating his parental rights was entered by reason of
abandonment, N.J.S.A. 30:4C-15.1(b)(1)(a)-(b).

2 A-4905-14T2
cousins. K.S. was raised by her aunt, who physically abused

her. When K.S. was fifteen, K.S.'s aunt no longer wanted to

care for K.S. and K.S. was placed in foster care. At the age of

eighteen, K.S. attempted suicide. When she was twenty years

old, in 2009, she gave birth to her son, A.L., Jr. She then

married his father, A.L., Sr., who joined the United States Army

and was separated from the family.

In 2010, K.S. left her nine-month-old son with a family

friend in unsuitable housing, promising to return the next day.

K.S. did not return the following day, and three days later, the

Division of Child Protection and Permanency (Division) became

involved, taking custody of the baby. Six days after leaving

her son, he was returned to K.S.

In 2013, K.S. gave birth to her daughter, A.K.L. Less than

seven months after A.K.L. was born, the Division reopened its

case, having received a referral of neglect. K.S. had left the

children with someone who subsequently abandoned them, leaving

the children alone in the home. The two young children were

then dropped off with relatives who could not care for the

children. The children were subsequently placed together with

the same resource family, where they remain.

As with virtually all parents facing the termination of

3 A-4905-14T2
their parental rights,4 K.S.'s poverty rendered her eligible for

assigned counsel. See N.J.S.A. 30:4C-15.4. K.S. was diagnosed

as suffering from alcohol abuse, frequently testing positive for

alcohol.5 She also tested positive for marijuana and was

diagnosed with mental illness, including "major depressive

disorder" and "paranoid ideation." Psychological testing

revealed borderline intellectual functioning, a poor short-term

working memory and cognitive limitations that contributed to her

lack of work history and unstable housing. Both fathers of her

children were violent. During the court proceedings K.S. was

hospitalized due to injuries caused by this violence. She was

housed in a domestic violence shelter in Camden County. The

Division's attorney and K.S.'s assigned lawyer both indicated

she had trouble finding transportation to some services, as well

as to the Passaic County Courthouse. She missed many

appointments for evaluations, services and visits with her

children.6

4
See Santosky v. Kramer, 455 U.S. 745, 763, 102 S. Ct. 1388,
1399-400, 71 L. Ed. 2d 599, 612 (1982) (recognizing that
"parents subject to termination proceedings are often poor[ and]
uneducated").
5
Alcohol use disorder is a recognized psychological condition.
Diagnostic and Statistical Manual of Mental Disorders 490 (Am.
Psychiatric Ass'n ed., 5th ed. 2013).
6
In 2015, K.S. gave birth to her third child, who was also
placed with the same resource family. Information regarding the
fourth child is not a part of the record on appeal.

4 A-4905-14T2
 The trial testimony took place on June 9, 2015, after K.S.

participated in unsuccessful mediation. K.S. did not appear.

The following day, the lawyers convened to prepare an evidence

sheet. On June 19, ten days after the single day of testimony,

the trial resumed for the judge to orally present his findings

and distribute his written decision. K.S. appeared and sought

to "present evidence on her behalf." Her assigned attorney

represented that K.S. thought the trial began on June 10. The

attorney stated that K.S. had inquired about the trial at the

Children in Court office on June 10 and was told that the trial

was over. The Law Guardian advised the judge that the mediator

had informed K.S. that trial was scheduled for June 9 and June

10. The trial judge denied K.S.'s application to reopen the

case, finding that K.S. had notice of the correct trial date and

chose not to appear. The judge based his finding on her history

of failing to attend scheduled judicial proceedings.

On appeal, K.S. raises the following issues:

POINT I: The Judgment of Guardianship Must
Be Vacated and the Matter Remanded for a New
Trial as [K.S.] was Unreasonably Denied an
Opportunity to Participate at Trial.

POINT II: The Trial Court Incorrectly
Applied the Legal Principles Governing
Termination of Parental Rights Matters to
the Facts. The Record Falls Short of
Satisfying Those Exacting Standards and
Therefore Termination of [K.S.]'s Rights
Should Not Be Affirmed.

5 A-4905-14T2
 A. The Division Failed to Produce Clear and
Convincing Evidence That [K.S.] Ever Harmed
Her Children.

B. The Division Failed to Produce Clear and
Convincing Evidence That [K.S.] Was
Unwilling or Unable to Eliminate Any
Perceived Harm to Her Children.

C. The Division Failed To Prove By Clear and
Convincing Evidence That [K.S.] Was Provided
With Services Reasonably Calculated to
Assist Her in Reunification.

D. The Division Failed to Produce by Clear
and Convincing Evidence that Termination of
[K.S.]'s Parental Rights Serves the Best
Interests of the Children.
We reverse and remand to give K.S. an opportunity to

present testimony. We review a trial judge's decision not to

reopen the record to take testimony under the abuse of

discretion standard. See Quick Chek Food Stores v. Springfield,

83 N.J. 438, 445-46 (1980). Our Supreme Court has recognized

that "[n]o hard and fast rule for the guidance of his [or her]

discretion can be laid down." State v. Wolf, 44 N.J. 176, 191

(1965). The trial judge abused his discretion in refusing

K.S.'s request to reopen the record shortly after the one-day

trial and before the trial judge issued his decision. Under

these circumstances, not allowing K.S. to testify deprived K.S.

of the procedural due process she was constitutionally entitled

to prior to permanently severing her relationship with her

children.

6 A-4905-14T2
 "A parent's right to raise and maintain a relationship with

his or her child is constitutionally protected." N.J. Div. of

Child Prot. & Permanency v. N.C.M., 438 N.J. Super. 356, 367

(App. Div. 2014), certif. denied, 222 N.J. 18 (2015). Before

terminating a parent-child relationship, the State must satisfy

the fundamental requirements of procedural due process as

provided in the United States and New Jersey constitutions. See

U.S. Const. amend. XIV, § 1; N.J. Const. art. I, ¶ 1.

In general terms, "[d]ue process requires adequate notice

and a fair opportunity to be heard." Div. of Youth & Family

Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div.),

certifs. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S.

1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004). "When the

State moves to destroy weakened familial bonds, it must provide

the parents with fundamentally fair procedures." Santosky,

supra, 455 U.S. at 753-54, 102 S. Ct. at 1395, 71 L. Ed. 2d at

606.

To determine whether a parent was afforded procedural due

process in a termination proceeding, we must evaluate the

governmental procedures under the balancing test enunciated by

the United States Supreme Court in Mathews v. Eldridge, 424 U.S.

319, 334-35, 96 S. Ct. 893, 902-03, 47 L. Ed. 2d 18, 33 (1976).

See M.Y.J.P., supra, 360 N.J. Super. at 465 (adopting the

7 A-4905-14T2
Mathews test in New Jersey). Under the Mathews balancing test,

the court must carefully balance the following three factors:

(1) "the private interest that will be affected by the official

action"; (2) "the risk that there will be an erroneous

deprivation of the interest through the procedures used, and the

probable value, if any, of additional or substitute procedural

safeguards"; and (3) "the governmental interest involved,

including the added fiscal and administrative burdens that

additional or substitute procedures would require." Ibid.

In considering the first factor of the Mathews test, we

recognize that a parent's private interest in maintaining some

relationship with his or her children is "far more precious than

any property right." In re Adoption of J.E.V., 442 N.J. Super.

472, 481 (App. Div.) (quoting Santosky, supra, 455 U.S. at 758-

59, 102 S. Ct. at 1397, 71 L. Ed. 2d at 610), certif. granted,

223 N.J. 558 (2015). Compared to the other Mathews factors,

"[i]n parental rights termination proceedings, the private

interest affected is commanding." Santosky, supra, 455 U.S. at

758, 102 S. Ct. at 1397, 71 L. Ed. 2d at 609. We recently noted

that "[a]fter the elimination of the death penalty, we can think

of no legal consequence of greater magnitude than the

termination of parental rights." J.E.V., supra, 442 N.J. Super.

at 481 (footnote omitted).

8 A-4905-14T2
 Children are entitled to permanency, which at times may

restrict a parent's testimonial right. See In re Guardianship

of J.C., 129 N.J. 1, 26 (1992) (noting that "children have an

essential and overriding interest in stability and permanency").

Whenever practicable, however, the parents' and children's

rights should both be accommodated. See M.Y.J.P., supra, 360

N.J. Super. at 470 (recognizing, where a mother in Haiti could

not attend the termination trial, but accommodations including

her videotaped de bene esse testimony were provided, that "the

children's right to a prompt determination of their status is

just as important as the interest of the" mother in attending

the trial (quoting In re Dean L., 490 N.Y.S.2d 75, 76 (App. Div.

1985))).

The second factor, the risk of error and the value of

additional procedural safeguards, similarly weighs in favor of

allowing K.S. to testify after the close of evidence. Because

the termination of parental rights is based upon an

individualized evaluation of the factual circumstances, a

complete record is constitutionally necessary and a parent must

be liberally afforded the right to be heard before executing the

severance of the parent-child relationship. See N.J. Div. of

Youth & Family Servs. v. M.M., 189 N.J. 261, 288 (2007)

(recognizing that parental fitness should be "evaluated on an

9 A-4905-14T2
individual basis" to satisfy due process). In declining to

reopen the record, a court exposes itself to the risk of a

deficient narrative, thereby not only depriving the parent of

his or her right to testify to keep his or her children, but

also depriving the children of their right to have the court

fully informed before making the final decision. Although the

Law Guardian sided with the Division, arguing at trial that K.S.

should not be allowed to testify, and continues that position on

appeal, the children are better served by a thorough

presentation of the evidence, which includes their biological

mother's testimony.

As to the third Mathews factor, although the State has an

interest in efficiency and in reducing "the cost and burden of

the proceedings," M.Y.J.P., supra, 360 N.J. Super. at 470,

allowing K.S. to testify would have imposed only a minimal

burden on the proceedings. See State v. Cullen, 428 N.J. Super.

107, 112 (App. Div. 2012) (finding that "the judge erroneously

gave greater weight to expedience and the brief delay that would

result than he gave to defendant's constitutional right to

testify on his own behalf"). K.S. made her request to testify

shortly after the one-day bench trial. No jury was involved and

presumably all counsel were prepared to immediately proceed with

the direct and cross-examination of K.S. because they had

10 A-4905-14T2
expected her to appear at trial. The judge had not yet rendered

a decision and would have needed only a short period of time to

revise his written opinion. Thus, allowing K.S. to testify

would not have materially delayed the proceedings.

Our Supreme Court has considered the decision to reopen the

record in the criminal context. See Wolf, supra, 44 N.J. at

184, 191-92. In Wolf, the trial judge refused to reopen the

criminal proceedings to allow the State's cooperating witness to

be further cross-examined after the jury began deliberations.

Id. at 184, 192. Defense counsel requested to reopen cross-

examination because the defendant claimed, prior to summations,

that the cooperating witness had called him to recant his sworn

testimony. Id. at 191-92. When reversing the conviction, which

resulted in a sentence of life imprisonment,7 the Court held:

It seems sufficient to say that when a
citizen's life is at stake a trial in a
court of justice is not a game and the judge
is more than an umpire. And so, when the
ends of justice will be served by a
reopening, it ought to be done.

[Id. at 191.]

7
At that time, a defendant sentenced to life imprisonment was
eligible for parole after twenty-five years in custody, minus
credit for "work time" and "good time." See N.J.S.A. 2A:113-4,
repealed by Act of Sept. 1, 1979, ch. 95, 1979 N.J. Laws 95,
N.J.S.A. 2C:98-2; see also State v. White, 27 N.J. 158, 171
(1958).

11 A-4905-14T2
Here, in a case of great importance, where the termination of

parental rights was at stake, reopening the record was necessary

to ensure justice.

The trial judge did not recognize other reasons in the

record which may have contributed to K.S.'s failure to appear on

the first scheduled trial date. Similar to most parents facing

termination of their parental rights, K.S. suffered from

substance abuse and cognitive impairments, was diagnosed with

mental illness, and was a victim of domestic violence. 8 K.S.

herself was placed in foster care as a child. She endured

unstable housing, difficulties with transportation, and other

consequences of poverty. K.S. suffered from various mental

health conditions and other stressors, lessening her

blameworthiness for her confusion about the trial date.

Further, we consider it to be in the best interests of the

children to allow K.S. to testify as to why her parental rights

should not be terminated. What harm could possibly befall the

8
In 2011, the New Jersey Office of Performance Management and
Accountability issued a report providing information collected
from screeners in child abuse or neglect cases. See Allison
Blake, The New Jersey State Central Registry 2011 Assessment,
Office of Performance Mgmt. & Accountability (July 2012),
http://www.nj.gov/dcf/about/divisions/opma/SCRReport_7%2026%2012
.pdf. According to the report, based on a sample size of 239
Child Protective Services calls, 81% indicated the existence of
substance abuse in the home, 79% involved domestic violence, and
68% involved mental health issues. Ibid.

12 A-4905-14T2
children from giving their mother an opportunity to express what

she believes is in their best interests?

A parent facing the termination of parental rights is

entitled to every reasonable opportunity to produce evidence.

If the parent seeks to reopen the record to testify after the

close of evidence, the trial court is constitutionally obligated

to grant the request as long as it does not interfere with the

children's "essential and overriding interest in stability and

permanency." J.C., supra, 129 N.J. at 26. Thus, we reverse and

remand to allow K.S. to testify, after which the court must

consider that testimony and make a new decision.

Reversed and remanded for forty-five days to allow K.S. to

testify, all parties to inform the trial court of any important

updates in the situation, and the judge to make a new decision.

We retain jurisdiction.

13 A-4905-14T2