RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3701-15T1
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
N.S.,
Defendant-Appellant,
and
M.S.,
Defendant.
________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF J.S. and A.S., MINORS.
________________________________
Submitted March 27, 2017 – Decided March 31, 2017
Before Judges Sabatino and Currier.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Cape May
County, Docket No. FG-05-27-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Laura Orriols, Designated
Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa H. Raksa,
Assistant Attorney General, of counsel;
Jennifer Russo-Belles, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Aleli M.
Crawford, Assistant Deputy Public Defender, on
the brief).
PER CURIAM
Defendant N.S. appeals the Family Part's April 18, 2016
judgment terminating her parental rights to her minor children,
J.S. ("Jason"), who is presently eight years old, and A.S.
("Allison"), who is presently six years old.1 For the reasons
that follow, we affirm.
The children's biological father, M.S. ("Matthew"), is not a
party to the appeal because about three weeks before trial, he
made an identified surrender of his parental rights to his sisters
and their husbands, the children's paternal aunts and uncles, who
have been serving as the children's resource parents. More
specifically, Jason resides with, and is to be adopted by, his
paternal aunt J.P. and her husband D.P., while Allison resides
with, and is to be adopted by, her paternal aunt L.E. and her
husband D.E.
1
We use initials and pseudonyms for the family members to protect
the privacy of the minors involved.
2 A-3701-15T1
On appeal, defendant argues that the Division of Child
Protection and Permanency ("the Division") did not prove prongs
one, two, or four of the statutory "best interests of the child"
test under N.J.S.A. 30:4C-15.1(a). She also argues that the judge
should have recused himself from the guardianship trial because
he formed a negative opinion about her while presiding over and
making findings in the earlier abuse and neglect proceedings.
I.
We derive the following facts from the record that bear upon
our consideration of the issues presented.
The Division first became involved with this family on April
30, 2012, when it received an allegation of inadequate shelter and
environmental neglect. The referent alleged hoarding conditions
in defendant's home, as well as the presence of dead rodents in
the kitchen sink and around the home, with rodent poison scattered
on the floors "like chicken feed." The referent reported that the
home had a horrible smell, and there were electrical receptacles
hanging out of the walls. Finally, the referent raised concerns
about the parents' mental health and defendant's prescription drug
use.
The Division investigated and found that the home was dirty,
cluttered, and messy. There were medication bottles on the floor
of the parents' upstairs bedroom, as well as missing outlet covers
3 A-3701-15T1
in the hallway, and a missing light switch cover in the living
room, with wires protruding from the wall.
Defendant denied that she was a hoarder. The Division's
investigation caseworker did not observe any rodents or rodent
poison in the home as alleged by the referent. However, defendant
admitted there had been a dead rat in the kitchen sink "a month
or two" earlier, which had since been thrown away. She also
admitted that the family members used rodent poison during the
winter months, but claimed they did so only in areas inaccessible
to the children, including the closet, the upstairs bathroom, and
behind the refrigerator in the kitchen. She stated that the poison
had been cleaned up.
Defendant told the caseworker that she could not keep up with
housework because the kids constantly made messes, she suffered
from depression and an injured back, and she received no assistance
from Matthew or other family members. Nevertheless, both defendant
and Matthew separately assured the Division that they would clean
up the house and remediate any safety issues.
Defendant stated that the home was owned by Matthew's parents,
and she and Matthew were responsible for paying only taxes,
insurance, and utilities. Defendant was not working outside the
home, while Matthew worked as a janitor, and the family received
government benefits, including food stamps.
4 A-3701-15T1
Defendant disclosed to the caseworker that she suffered from
depression, for which she took medication, and attended
counseling. She also disclosed that she had back surgery about a
year earlier, and she continued to take prescription medication
for pain. Matthew, meanwhile, admitted attending counseling for
anger management, taking medication for a chronic illness, and
occasionally smoking marijuana.
Upon returning to the home on May 3, 2012, the Division
caseworker did not note any safety concerns. The home at that
point had been straightened up a bit, although the parents'
upstairs bedroom still needed work. The Division consequently
deemed the allegations of neglect at that time unfounded.
Nevertheless, the Division kept the case open for services, in
order to make sure the home remained clean and safe for the
children.
Thereafter, defendants cooperated for a period of time with
the services provided and monitored by the Division. These
services included parenting skills and homemaking/life skills
services, psychological treatment and medication monitoring for
defendant, and anger management counseling for Matthew.
At times, the parents seemed to be making progress on the
condition of the home, with the downstairs rooms appearing cleaner
and less cluttered. At other times, the downstairs rooms appeared
5 A-3701-15T1
cluttered and dirty. Moreover, the upstairs rooms were regularly
in a messy condition, and defendants did not always permit
caseworkers to examine them.
The observed conditions reflected more than inadequate
housekeeping. For example, at a visit on April 25, 2013, the
Division's caseworker noted concerns about the condition of the
children, remarking on their dirty clothing and their faces smeared
with dried food and mucus.
At a later visit on May 31, 2013, a caseworker observed trash,
broken toys, and clothing strewn on the floor of Jason's bedroom,
as well as smeared feces on the bedroom wall. Responding to the
caseworker's statement that the wall needed to be cleaned
immediately, defendant stated that she had left the feces on the
wall because if Jason could smear his feces, then he could clean
them up as well.
Jason was only four years old at the time. Moreover, as an
infant he was diagnosed with a genetic condition known as Cornelia
6 A-3701-15T1
de Lange Syndrome ("CDLS"), which causes behavioral and
developmental problems,2 for which he receives services.3
Several months later, on August 6, 2013, a caseworker observed
Allison put a magnet in her mouth and told defendant. Defendant
took the magnet away from the child and blamed Jason for the
incident, stating that Allison copies her brother's behaviors. At
the same visit, the caseworker again observed that Jason's bedroom
was a mess, with bags of trash, toys, broken wood, and Pediasure
bottles on the floor, and a potty chair was in the middle of the
room with urine and a bowel movement in it.
Defendant did not accept responsibility for maintaining the
home. After more than a year of services, she continued to blame
her young children for making messes and not cleaning them up, and
to disclaim any personal obligation to clean, citing her physical
and mental limitations. She referred to the children as her "ball
and chain."
2
CDLS, also known as de Lange syndrome, is "[a] congenital
disorder of infants marked by failure to grow, mental retardation,
a growing together of the eyebrows, a low hairline (down on the
forehead), a depressed bridge of the nose, low-set ears, short and
tapering fingers, and a small head. In some cases, the infant
[also] has congenitally large muscles. . . ." J.E. Schmidt, M.D.,
Attorneys' Dictionary of Medicine, D-15-16 (edition 2009).
3
Matthew was diagnosed with CDLS several years after his son, in
2015.
7 A-3701-15T1
On September 19, 2013, more than sixteen months after the
initial referral, a Division caseworker and a service provider
conducted an unannounced visit to the home. No one responded to
their knocks on the door, and they observed Allison standing on a
dresser, banging on a first-floor window with an iPad.
They contacted the police and after the officer arrived,
about thirty-five minutes after the workers' initial arrival,
defendant and Matthew finally opened the door. She said she could
not believe the worker had "called the f***ing police to come,"
and explained that she and Matthew had been upstairs sleeping
while Allison napped and Jason was at school, and with the doors
closed and the air conditioner on they had not heard any knocking.
She claimed she woke up when she heard Allison on the baby monitor.
Defendant cursed at the workers and was belligerent during
this entire visit. On the first floor of the home, the workers
found broken and overturned furniture, as well as clothing, trash
bags, loose trash, half-eaten food, dirt, flies, screws,
construction tools, and dried dog food mixed with Cheerios strewn
on the floor. Defendant did not intervene to stop Allison from
picking through the dog food in order to eat the Cheerios, nor did
she intervene to stop her from picking up a baby spoon on the
windowsill, which was surrounded by mouse feces, so the workers
did so.
8 A-3701-15T1
As a result of these observations, the Division
administratively substantiated defendant and Matthew for
environmental neglect, substantial risk of physical injury, and
lack of supervision for Allison. Because Jason was not home, the
Division only substantiated environmental neglect and substantial
risk of physical injury. The Division removed the children on an
emergent basis under the Dodd Act.4 After the Division filed a
complaint for custody, the court approved the removal. Later, on
January 6, 2014, defendants stipulated to being a family in need
of services to ensure the health, safety, and welfare of their
children.
Upon removal from their parents, the children were placed in
a resource home for one night, after which they were placed with
their paternal grandparents. They remained in that placement
until spring 2015, after the grandmother experienced health
issues. Thereafter, the children were placed separately, with
paternal aunts and uncles (Matthew's sisters and their husbands).
These relatives expressed a desire to adopt the children, and they
preferred adoption to kinship legal guardianship.
4
A Dodd removal is an emergent removal of a minor without a court
order pursuant to N.J.S.A. 9:6-8.21 to -8.82 (the Dodd Act). N.J.
Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
9 A-3701-15T1
A Division caseworker testified at the guardianship trial
that, although the children are separated, the paternal family is
close-knit. The paternal aunts both teach in the same school,
they ensure that the children see each other at least three times
during the week, and their families often spend time together on
weekends. Moreover, the resource parents have engaged with the
Division to ensure that the children receive all necessary
services.
After the September 2013 removal, the Division's goal
initially was family reunification. The areas of concern included
the state of the home, the parents' mental health, and the family's
financial stability, since defendant was not working and Matthew
worked only seasonally. They struggled to pay their bills.
The Division continued to provide and monitor services,
including: family team meetings, parenting capacity evaluations
and a parenting program; psychiatric and psychological services
for both parents, including both individual and couples
counseling; and financial assistance, including furniture for the
home and money to pay the family's electric bill. Division records
also reflect that in the months after the removal, defendant sought
substance abuse treatment, but only counseling was recommended.
During visits to the family home, caseworkers sometimes
remarked on certain improvements that defendants had made in
10 A-3701-15T1
cleaning and decluttering. However, they also continued to note
serious problems, for example, an overwhelming odor of cat urine,
dirty carpets and mattresses, mold, and excessive clutter and
dangerous items left out in the open, both inside and outside the
home. Moreover, on some occasions, the parents resisted showing
the upstairs of the home.
Due to continued problems at the home, the Division took the
extraordinary step of retaining a hoarding response company to
assist the parents in cleaning and decluttering the home and yard.
This occurred in May or June 2014, more than eight months after
the children's removal.
Immediately after the hoarding company's intervention, the
home was substantially improved. 5 Over time, however, issues
returned.
The Division provided visitation services to the parents
through the Robin's Nest agency, along with therapeutic and family
support services. Defendants regularly attended visitation, and
their interactions with the children were generally considered
positive.
At first, the visitation was supervised. Over time, however,
it progressed to being only partially supervised, with some
5
Division records reflect that defendant was briefly employed in
the summer of 2014. However, she lost the job in September 2014.
11 A-3701-15T1
unsupervised time. In July 2014, the court granted an extension
of the plan for reunification. By September 2014, the children
were engaged in overnight weekend visits with their parents in the
hope of reunification in the near future.
In October 2014, however, defendant suffered a mental health
crisis. When workers visited the home on October 3, 2014, at the
start of a weekend visit, defendant was disoriented, confused, and
slurring her words. She reported hallucinations, stating that she
had seen a dragon in the kitchen, and she could see things moving
on the walls, but it was "no big deal." She further stated that
she had been hiding knives around the home because she thought
someone was breaking in when she was alone.
Matthew told the workers that defendant had been taking
incorrect doses of her medication, and she had been hallucinating
for months. He said he did not tell anyone about this earlier
because he did not want to delay reunification.
Defendant was taken to the hospital, where she was evaluated
and then released. The weekend visit proceeded with Matthew only.
When a caseworker visited four days later, on October 7,
2014, defendant admitted she had been having hallucinations off
and on since the children were removed. At the same visit, Matthew
cried and said he "was done"; he wanted defendant out of the home
12 A-3701-15T1
because he did not want her problems to affect his chances of
getting the children back.
About two weeks later, on October 23, Matthew reported that
defendant became violent when he asked her to leave the home, so
he called the police to remove her. When questioned by the
Division, defendant admitted throwing a bottle at Matthew, but
denied trying to choke him, as he had alleged. The following day
Matthew obtained a temporary restraining order against defendant,
and defendant began living with her sister.
Thereafter, the Family Part granted additional extensions of
the plan for reunification, through April 2015. The Division had
continued concerns about defendant's mental stability, so its plan
was to seek reunification with Matthew only, first giving him some
time to manage life on his own and become financially stable.
Robin's Nest provided services to both parents individually,
with defendant's visitation fully supervised due to safety
concerns. As time went on, Matthew was granted unsupervised
visitation with the children, and reunification with him appeared
likely.
On March 24, 2015, however, with reunification planned for
the following month, Matthew advised the Division that he had
dismissed the restraining order against defendant, and they
planned to mend their relationship. Soon thereafter, the Division
13 A-3701-15T1
learned that defendant had moved back into the marital home, and
she had been in the home during one of the children's visits with
Matthew, violating the requirement that her visits with the
children be supervised by a Division-approved individual.
Given these changed circumstances, the Division delayed its
plan for reunification. It also reinstated supervised visitation
for both parents, due to concerns for the children's safety as a
result of defendant's mental health issues and the animosity
between the parents. Nevertheless, some visits occurred in the
home.
The Division requested another extension of time for
reunification. However, by order dated April 15, 2015, the court
denied that request "because of continuing concerns and the lack
of sufficient progress[.]"
In May 2015, the Family Part approved a permanency plan of
termination of parental rights followed by relative adoption. Then
in June, the Division filed a complaint for guardianship, and
terminated the abuse and neglect litigation.
Thereafter, the couple's relationship remained unstable. In
August 2015, they reported they might divorce. However, the
following month, they reported they would remain a couple and
hoped to parent the children together. Defendant's mental health
14 A-3701-15T1
also was uncertain, as she told her therapist in August 2015 that
she was having hallucinatory thoughts about a mechanical bug.
Moreover, notwithstanding that supervised visits were allowed
at the home, the condition of the home remained problematic. On
visits conducted during this time period, the Division found the
downstairs area to be moderately clean, although it sometimes
smelled of garbage. However, even as late as December 2015, the
upstairs area was still partially under construction, as well as
dirty and unkempt. The outside of the home was problematic because
the porch was under construction, and the yard was overgrown and
full of trash, including construction materials, scrap metal, and
non-working vehicles.
The testifying Division caseworker stated that reunification
was not possible at the time of trial due to both the condition
of the home, and defendant's failure to acknowledge the seriousness
of the condition, which raised concerns for the children's well-
being if they were returned to her care. The caseworker conceded,
however, that defendant was engaged in individual counseling, she
was employed, and her mental health had improved such that the
Division did not have any present concerns for her personal well-
being.
The Division's expert psychologist, Dr. James Loving,
testified about his January 2016 psychological evaluation of
15 A-3701-15T1
defendant, and his bonding evaluations between defendant and the
children, and of the children and their resource parents (with the
exception of Allison's uncle, who could not attend due to illness).
Dr. Loving diagnosed defendant with major depressive disorder
that is recurrent and cyclical but in partial remission. He also
diagnosed her with an anxiety disorder, opioid use disorder in
sustained full remission, and dependent personality traits. He
credited her with complying with services and persistently working
to regain custody of her children.
Nevertheless, Dr. Loving cited a number of factors that
rendered defendant unable to provide a safe, stable, and healthy
home to the children at present or within the foreseeable future,
including: her failure to consistently maintain a clean and safe
home; her failure to recognize her personal obligation to do so
as opposed to blaming others for the problems; and her failure to
recognize the risk of physical and emotional harm to the children
from conditions in the home. Dr. Loving also underscored the risk
that defendant's anxiety and debilitating depression would recur,
and that she would fail to seek treatment; the risk of recurrent
substance abuse; and her dependent personality traits, which
caused her to remain stuck in unhealthy situations and not function
independently.
16 A-3701-15T1
Dr. Loving testified that defendant's relationship with
Matthew posed "a double-edged sword" as relates to reunification.
On the one hand, Dr. Loving noted that the relationship was full
of conflict and characterized by mutual defiance and immaturity.
Thus, if the couple remained together, the children would be at
high risk from the household conditions and marital conflict,
which had not been fully remediated notwithstanding years of
services. Indeed, Dr. Loving believed it likely that the home
would devolve to much dirtier and unsafe conditions if
reunification occurred and the family were not closely monitored.
On the other hand, Matthew had expressed to Dr. Loving an
intention to end his relationship with defendant, and, if the
couple separated, defendant would need to establish independent
living for the first time in years, with no plan for doing so, and
very few financial resources or sources of support. Reunification
under these circumstances, Dr. Loving opined, "would be a very
long-term plan at best." In the meantime, the children would be
kept "in a situation of limbo that would be unhealthy for them
over time." Moreover, Dr. Loving noted that the plan was risky
because termination of the marital relationship would cause
defendant severe stress, which in the past contributed to her
debilitating depression and anxiety.
17 A-3701-15T1
In terms of bonding, Dr. Loving found that the children had
strong, positive attachments to their parents and to each other,
as well as fairly strong and positive attachments to their resource
parents. Although Allison's uncle could not attend the bonding
session, Dr. Loving stated that "[t]here is every indication that
she experiences a similar attachment with" him as she does with
her aunt, noting that through her play Allison indicated she
perceived her uncle as part of her family.
Dr. Loving acknowledged that if the children were permanently
separated from their parents, they would suffer at least temporary
confusion and be upset. Jason would be at greater risk than
Allison due to his age, the greater amount of time he spent in his
parents' care, and his disabilities. But Dr. Loving also predicted
if the children remained in their current homes and progressed
toward adoption, which would allow them a sense of permanency,
they would be capable of overcoming the loss of their parents and
they would not suffer severe or enduring harm.
Ultimately, Dr. Loving supported the Division's plan for
termination of defendant's parental rights, followed by adoption
by the children's resource parents, because defendant was unable
to provide a safe, clean, stable, and healthy home to her children
at present or in the foreseeable future.
18 A-3701-15T1
In terms of defendant's future contact with the children, Dr.
Loving testified that both aunts had expressed the same sentiment,
that is, "ideally" defendant would remain involved. However, the
aunts were unsure what those arrangements would be given the
history of conflict between defendant and Matthew's family. In
terms of the children's continued relationship with each other,
the aunts told Dr. Loving that their families were very close, the
children saw each other on a regular basis, and they would continue
to facilitate frequent contact between them.
The Law Guardian's expert psychologist, Dr. Jo Anne González,
also testified at trial. Dr. González performed a psychological
evaluation of defendant, as well as bonding evaluations of the
children and defendant, and of the children and their resource
parents. Allison's other resource parent, her paternal uncle, did
attend this evaluation. Her conclusions were largely the same as
Dr. Loving's.
Dr. González's psychological examination revealed that
defendant is self-centered, needy, and manipulative; she resists
accepting responsibility for her actions; and she blames others
for the problems in her life. Moreover, her parenting assessment
revealed that defendant has serious deficits in her parenting
skills, rendering her unable to understand or meet her children's
needs.
19 A-3701-15T1
Dr. González diagnosed defendant with mood disorder, anxiety
disorder, personality disorder, and a history of opioid
dependence. She further concluded that defendant could not safely
parent her children due to her mental health issues. Dr. González
also noted defendant's failure to acknowledge responsibility for
her situation or her ability and obligation to remediate the
problems that led to the children's removal.
In terms of bonding, Dr. González found that the children had
a strong and affectionate, yet insecure, attachment to defendant.
In particular, the Law Guardian's expert found that the children
were insecure about whether defendant could meet their needs; in
this regard, she noted that during the bonding examination the
children were hesitant to share information with their mother
about their current homes, for fear of upsetting her.
Dr. González believed the children would suffer a sense of
loss if defendant's parental rights were terminated, with Jason
more affected than Allison since he was older and had been in
defendant's care for longer than his sister. However, the expert
concluded the termination would not cause the children irreparable
emotional damage. Rather, they would recover with guidance from
their resource parents, with whom they had strong and secure
attachments.
20 A-3701-15T1
By contrast, Dr. González found that if the children were
placed with defendant they would suffer from the loss of their
relationships with their resource parents and resource siblings
(cousins),6 which defendant would not be able to remediate because
she would neither understand nor be sensitive to the children's
sense of loss. Moreover, Dr. González testified that if the
children were returned to defendant they would face a significant
risk of neglect, and defendant would have particular difficulty
dealing with Jason, who is more challenging due to his disabilities
and special needs.
Finally, Dr. González perceived no benefit in granting
defendant additional time to eliminate the risks she posed to the
children, because the children needed permanency. In this regard,
she estimated that if defendant's plan were to parent the children
on her own, it would take between eighteen months and two years
for her to establish her ability to do so. Thus, Dr. González
recommended that defendant's parental rights be terminated due to
defendant's inability to provide safe and adequate parenting, and
the children be adopted by their resource parents.
Commenting on defendant's ability to see the children in the
future after a termination, Dr. González testified that the aunts
6
Allison's resource sibling participated in the bonding
evaluation.
21 A-3701-15T1
told her "they're not closing the door on having contact with
[defendant], but they want other things to change before" that
happens. At the same time, Dr. González did not recommend family
counseling due to the level of animosity and distrust between
defendant and Matthew's family members.
Defendant did not testify at trial, nor did she present any
fact or expert witnesses.
II.
A.
Turning to the issues raised on appeal, we note the law in
this area is well-established. "Parents have a constitutional
right to raise their children. . . . But that right is not
absolute. It is a right tempered by the State's parens patriae
responsibility to protect children whose vulnerable lives or
psychological well-being may have been harmed or may be seriously
endangered by a neglectful or abusive parent." N.J. Div. of Youth
& Family Servs. v. F.M., 211 N.J. 420, 447 (2012).
Under N.J.S.A. 30:4C-15.1(a):
The division shall initiate a petition to
terminate parental rights on the grounds of
the "best interests of the child" . . . if the
following standards are met:
(1) The child's safety, health, or
development has been or will continue to be
endangered by the parental relationship;
22 A-3701-15T1
(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.
The Division must prove all four prongs of the statutory
standard, which are interrelated, by clear and convincing
evidence. F.M., supra, 211 N.J. at 447-48.
On appeal from a termination of parental rights, we must
recognize the Family Part's "specialized knowledge and experience
in matters involving parental relationships and the best interests
of children." Id. at 427. Thus, "[w]e defer to the family court's
findings unless they are so wide of the mark that our intervention
is required to avert an injustice. So long as the record contains
substantial and credible evidence to support the family court's
decision, we may not second-guess its judgment." Ibid. See also
N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552-53
(2014); N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,
23 A-3701-15T1
278-79 (2007). We also "defer to the trial court's credibility
determinations." R.G., supra, 217 N.J. at 552.
B.
Here, the trial court specifically found the witnesses
presented by the Division and the Law Guardian to be credible, and
found Dr. González's testimony particularly compelling. The court
noted that all of the evidence was unrebutted.
Regarding the first prong of the Title Thirty statutory test
for termination, the court found that the children's safety and
welfare would continue to be endangered by the parental
relationship, since defendant was unable or unwilling to provide
a safe and clean home for her children. The court pointedly stated
in this regard:
Much of the theme and history of this case has
to do with [defendant] and her deflection of
responsibility for the conditions in the home
that led to the removal. She'd blame her
husband for the conditions of the home; she'd
blame third parties; she even blamed the
children for the conditions of the home. At
one point [Jason's] feces was observed to be
smeared against the wall. The Division
inquired . . . why it hadn't been cleaned up.
[Defendant] indicated that it was [Jason's]
responsibility to clean it up because he put
it there. This fundamental lack of insight
and acceptance of responsibility has not
changed during the four years the Division has
been involved with this family and it's not
going to change.
24 A-3701-15T1
Regarding the second prong of the statute, the court found
that defendant was unwilling or unable to eliminate the harm,
incorporating its prior analysis and noting the "multitude of
services" provided by the Division. Even defendant "herself
reported that the home wasn't acceptable for the children to return
to." The court cited Dr. González's testimony for its conclusion
that defendant "lacks the insight necessary to make the changes
to allow her to provide a safe home for the children and that's
not going to change[.]" Finally, the court relied upon the expert
testimony to conclude that delaying the matter would be harmful
to the children, who were entitled to permanency. As the court
observed: "[f]our years is enough."
Regarding the third prong, the court cited the many services
provided by the Division, and concluded that they constituted
"more than reasonable efforts." Moreover, the court found there
was no alternative to termination of parental rights because the
children were in safe and loving resource homes, and their resource
parents wanted to adopt and were not interested in kinship legal
guardianship.
Finally, regarding the fourth prong, the court concluded that
termination of defendant's parental rights would not do more harm
than good because the children were in safe homes with resource
parents committed to adoption, and defendant was not in a position
25 A-3701-15T1
to safely parent her children, nor would she be "within an
acceptable or reasonable time frame that it makes a difference for
these kids." In this regard, the court noted that defendant had
no plan for her own future, let alone the children. The court
acknowledged that the children would suffer a loss if defendant's
rights were terminated, but concluded that the loss was
"significantly outweighed by the possibility of adoption by a safe
and loving home which can provide the safe environment [defendant]
cannot."
C.
Defendant disputes the court's findings with respect to
prongs one and two of the statutory test. She argues that, since
at least June 2014, the house did not present a safety concern for
the children, as evidenced by the fact that visitation was allowed
in the home.
Defendant acknowledges that, during this time frame, the home
and yard were cluttered. However, particularly with respect to
the downstairs of the home, the Division allegedly noted only
"housekeeping" concerns, not safety concerns, and as a matter of
law "a messy house" that does not endanger the safety, health, or
development of the children is insufficient to prove the first or
second prongs of the statutory test.
26 A-3701-15T1
Defendant maintains that the court erred by relying heavily
upon the condition of the home at the beginning of the Division's
involvement, as opposed to the time of trial. Further, she argues
that the second floor of the home is irrelevant to the court's
consideration because the children could be excluded from that
portion of the home.
Also with respect to the first and second prongs of the
statutory test, defendant argues that the court erred by concluding
she lacked insight and personal accountability to improve the
conditions of the home. In this regard, she notes her voluntary
enrollment in therapy to manage her depression and anxiety, her
compliance with services, and notations by service providers
indicating that she had shown progress and improvement in her
acceptance of responsibility.
Defendant further argues that the experts who concluded she
lacked insight relied upon "imperfect information and a
misunderstanding of the underlying facts," particularly because
they never visited the home and instead relied upon the
caseworkers' assessments. She claims their opinions that she
would not continue to improve were inconsistent with the
observations of her treatment providers. Moreover, she claims the
court erred by crediting the experts merely because she did not
present any expert testimony of her own.
27 A-3701-15T1
Having carefully considered these arguments by defendant, we
find no error in the court's conclusions as to prongs one and two
of the statutory test. The record amply supports the trial court's
conclusion that defendant endangered the welfare of her children
through the condition of her home, she was unable or unwilling to
eliminate the harm facing the children or provide a safe and stable
home, and the delay of permanent placement would add to the harm.
"The first two elements of the best interests of the child
standard relate to the finding of harm arising out of the parental
relationship." In re Guardianship of D.M.H., 161 N.J. 365, 378
(1999). Thus, "evidence that supports one informs and may support
the other as part of the comprehensive basis for determining the
best interests of the child." Id. at 379.
Turning to defendant's specific arguments, we first disagree
with her contention that the court erred by addressing the early
conditions of the home. These conditions were relevant to the
prong one analysis and the harm caused to the children. We note,
however, that the court did not limit its analysis to the
Division's initial involvement with the family. It also addressed
evidence of current conditions at the home, including defendant's
admission to Dr. González that the home was not currently
appropriate for the children to be returned.
28 A-3701-15T1
Moreover, contrary to defendant's argument, the record in
this case does not reflect merely inadequate housekeeping. As a
result of defendant's incapacitating depression and anxiety, her
immature and conflicted relationship with Matthew, and her failure
to recognize the needs of her children, conditions at the home
have regularly presented concerns for the children's safety should
they be returned to defendant's care.
Specifically, the evidence shows that at various times in
2012 and 2013, the home was routinely dirty and cluttered, both
upstairs and downstairs, and ultimately the children were removed
due to the deplorable and unsafe conditions found on September 19,
2013. After the hoarding company's intervention in June 2014,
conditions at the home appeared to have improved such that Division
intended to reunify the family. Just four months later, however,
in October, the Division learned that defendant had been concealing
the deteriorating status of her mental health, including
hallucinations that convinced her to hide knives around the home,
which presented a danger to the children.
Thereafter, between October 2014 and March 2015, defendant
was out of the home. While in-home visitation was reinstated for
Matthew, the condition of the home at this time was unrelated to
defendant.
29 A-3701-15T1
After defendant's March 2015 return to the home, visitation
was supervised, sometimes in the home, and the Division found the
downstairs to be adequately clean. However, the caseworker
testified that the upstairs still remained dirty and unkempt, as
well as partly under construction, the porch was under
construction, and the yard was overgrown and full of materials
that posed a danger to the children. In the caseworker's opinion,
the current condition of the home precluded family reunification,
and Dr. González testified that defendant admitted as much during
her December 2015 examination.
Taken as a whole, this record manifestly supports the court's
conclusions as to defendant's endangering the safety and welfare
of her children, and her inability and unwillingness to maintain
a safe and stable home. See, e.g., N.J. Div. of Youth & Family
Servs. v. K.M., 136 N.J. 546, 550-53, 562 (1994) (affirming finding
of abuse and neglect based, in part, upon dangerous and filthy
living conditions in the home). Moreover, we disagree with
defendant's argument that the condition of the yard and the
upstairs of the home are irrelevant to the court's consideration.
The record reflects that the home is accessed through the front
yard, and the children play in the yard. Therefore, the presence
of dangerous items in the yard is relevant to the overall safety
of the home.
30 A-3701-15T1
We further note that the second floor of the home is not
unused space from which the children can be excluded. It contains
living space that is currently being used by the family, including
the parents' bedroom. This is an area of the home the children
should be able to safely access, especially given the parents'
history of leaving the children unattended downstairs during
waking hours, while the parents are upstairs.
Contrary to defendant's argument, we find no error in the
court's conclusions regarding her lack of insight and her failure
to take personal accountability to improve the conditions of the
home. The evidence sufficiently shows that defendant lacked
insight into her children's developmental needs and abilities, and
her own obligations as a parent. She excused the condition of the
home by pointing to her mental and physical condition, or she
blamed her husband for failing to maintain the home. Most
disturbingly, she at times blamed the children for creating messes
and not cleaning them up, failing to take into account their young
ages and their developmental abilities.
The experts and the trial court did acknowledge defendant's
engagement with services provided by the Division, as do we.
Unfortunately, however, notwithstanding years of services, her
efforts have not produced significant results in improving the
factors that led to the children's removal. Indeed, when examined
31 A-3701-15T1
by Dr. González in December 2015, defendant effectively failed the
parenting assessment, indicating that she continued to have little
insight into her children's developmental needs or how to fulfill
them.
In this regard, the court reasonably relied upon the testimony
of both Dr. Loving and Dr. González that defendant is presently
incapable of safely parenting her children, and she will remain
so for the foreseeable future. The court also reasonably relied
upon the experts' opinions that the children required permanence,
and that a delay to allow defendant further time to prove herself
would merely add to the harm already suffered.
Finally, regarding the court's credibility assessments, we
agree with defendant that the court was not bound to accept the
testimonial evidence as true simply because defendant presented
no witnesses. Considering the opinion as a whole, it is clear the
court accepted the witnesses' testimony because it was credible
and supported by the documentary record, as well as the experts'
examinations of defendant.
Furthermore, contrary to defendant's suggestion, the experts'
opinions are not invalid or less valuable because they did not
visit the home. To the contrary, the caseworkers' observations
are the best evidence as to the condition of the home over the
course of the Division's involvement. A single visit by the
32 A-3701-15T1
experts would be of little value. Thus, we perceive no error in
the court's credibility determinations.
We likewise reject defendant's argument that the court erred
in finding the Division had proven the fourth prong of the
statutory test. This element is addressed to whether the
termination of parental rights will do more harm than good.
N.J.S.A. 304C-15.1(a)(4). The fourth prong "is related to the
first and second elements of the best interests standard, which
also focus on parental harm to the children." D.M.H., supra, 161
N.J. at 384. It "serves as a fail-safe against termination even
where the remaining standards have been met." N.J. Div. of Youth
& Family Servs. v. G.L., 191 N.J. 596, 609 (2007).
The fourth prong does not require "a showing that no harm
will befall the child as a result of the severing of biological
ties." In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999).
Rather, the question to be addressed is whether, after considering
and balancing the children's relationships, the children will
suffer a greater harm from the termination of the ties with their
mother than from the permanent disruption of their relationships
with their resource parents. Ibid. Accord M.M., supra, 189 N.J.
at 281 (noting that expert testimony on bonding should be submitted
by the Division). The question is not which set of parents can
provide a "better" home for the child, but what is in the child's
33 A-3701-15T1
best interests. N.J. Div. of Youth & Family Servs. v. A.W., 103
N.J. 591, 603 (1986).
In making an assessment under prong four, courts must be
cognizant of the State's "strong public policy in favor of
permanency," and they "must not lose sight of time from the
perspective of the child's needs." K.H.O., supra, 161 N.J. at
357. Accord R.G., supra, 217 N.J. at 559. They must consider the
children's ages, their overall health and development, and "the
realistic likelihood that [defendant] will be capable of caring
for the child[ren] in the near future." K.H.O., supra, 161 N.J.
at 357.
We first address defendant's arguments questioning the
validity of the experts' bonding assessments of Allison and her
resource parents, and the court's reliance upon the experts'
conclusions. Specifically, defendant faults Dr. Loving for going
forward with the bonding evaluation of Allison and her resource
parents without the presence of the uncle, and simply assuming the
results would apply to him as well. She also faults Dr. González
for allowing Allison's cousin to participate in the bonding
evaluation, because this changed the dynamic and the ability of
Dr. González to assess the bond between Allison and her resource
parents.
34 A-3701-15T1
We perceive no basis for reversal based upon these arguments.
We agree that Dr. Loving's assessment about Allison's bond with
her resource father was impeded by the latter's non-participation
in the bonding evaluation. Townsend v. Pierre, 221 N.J. 36, 53-
55 (2015) (addressing the net opinion rule). However, his
conclusion that Allison was bonded with her resource mother was
supported independently by factual evidence and appropriately
considered by the court. Moreover, the court had the benefit of
Dr. González's credible separate professional opinion that Allison
was bonded with both of her resource parents. Hence, the court
did not err in concluding she was bonded with her uncle as well
as her aunt.
We also find no error in the court's reliance upon Dr.
González's bonding assessment of Allison and her resource parents
because their biological daughter participated in the session.
The trial judge heard competing views as to whether it is
appropriate to conduct a bonding evaluation with an entire family,
or just the parents and the child at issue. Dr. Loving testified
that he generally does not include other family members, but he
admitted there were both "pros and cons" to including them. On
the other hand, Dr. González testified that her preference was to
include all who live in the household; and in this particular
case, Dr. González wanted the cousin to be present because Allison
35 A-3701-15T1
had a close relationship with her, and Allison had expressed fear
of the assessment.
In sum, the court was able to assess defendant's critique of
Dr. González's methodology, and we have no basis for rejecting the
court's acceptance of her conclusions. A trier of fact, in this
instance the Family Part judge, is free to accept or reject the
opinions of any testifying expert, in full or in part. See, e.g.,
Becker v. Baron Bros., 138 N.J. 145, 159, 164-65 (1994); Angel v.
Rand Express Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div.
1961).
Defendant faults both experts for allegedly ignoring concerns
about the commitment of both sets of resource parents to the
children, and the level of care they provide. We find no merit
to this argument. The experts' reports indicate they considered
the Division records, which included factual accounts of the
caseworkers' interactions with the resource parents. See N.J.R.E.
703 (authorizing experts to consider written materials and other
factual evidence not provided in admissible testimony). Moreover,
the experts met with the resource parents, except as previously
discussed, and were able to assess their level of commitment to
the children. There is no indication that the children are
mistreated in their resource homes, nor any reason to question the
resource parents' commitments to adopt.
36 A-3701-15T1
Next, defendant faults both experts for failing to adequately
address the separation of the children, arguing that the "glaring
absence of sibling evaluation data renders all the bonding
evaluations deficient as a matter of law because the opinions fail
to consider the harm that would be visited upon the children by
remaining in separate homes."
We disagree. Defendant cites no legal authority requiring a
bonding evaluation between the siblings. There is a preference
for siblings to be placed together, N.J.S.A. 9:6B-4(d), but this
is not always possible. In this case, the Division initially
placed the children together in the home of their paternal
grandparents, but that placement became untenable when the
paternal grandmother became ill. Only at that point, in spring
2015, were the children placed separately with their paternal
aunts. Although separated, the children as of the time of trial
maintained close ties. The aunts ensured that the children saw
each other during the week and often on weekends as well. The
experts rightly considered these facts in recommending the
termination of parental rights, and the court agreed with their
recommendations.
Finally, defendant emphasizes her strong bond with the
children, which was undisputed, and the caseworker's testimony
that she was employed at the time of trial and the Division had
37 A-3701-15T1
no present concerns for her well-being. Based upon these factors,
she argues that there was no reason to believe she would be unable
to care for the children independently. She argues that she should
be given an opportunity to establish herself as a single parent
prior to a termination of her parental rights, and that concerns
over possible future instability "cannot reasonably be held to
significantly outweigh the harm that will stem from termination."
We disagree with defendant's assessment of the record. The
sincerity of her love for her children, or them for her, is not
doubted. Both experts found that the children had strong, positive
attachments with their parents, and the visitation reports support
that opinion. However, Dr. González also opined, without
contradiction, that the children's attachment to defendant was
insecure. Neither expert believed defendant was presently capable
of caring for them.
Thus, to the extent defendant wished to parent the children
on her own, the record is bereft of evidence that it could happen
immediately, as she argues on appeal. Dr. Loving testified that
reunification under such circumstances "would be a very long-term
plan, at best," and Dr. González similarly opined that it could
take up to two years for defendant to prove her ability to care
for the children on her own. Neither expert believed this plan
would be in the children's best interests, because the children
38 A-3701-15T1
had been placed outside the home for so long, and they required
permanency. The trial court credited these experts' opinions, and
we have no basis for rejecting that credibility assessment. The
court appropriately gave much weight to the children's vital needs
for permanency. R.G., supra, 217 N.J. at 559.
D.
In her final argument, defendant maintains that the judge
should have recused himself from the guardianship trial because
he had overseen the case since its inception as an abuse and
neglect proceeding, and because he denied the Division's April
2015 request for an extension of time for reunification. She
contends that the judge was "frustrated" with her, and he had
already formed an opinion about her that prevented him from
engaging in a fair analysis of the record. In this regard, she
notes the judge's reliance upon "stale data" and his conclusion
that there was a pattern of regression in the home conditions,
when in reality the home had remained safe for an extended period
of time.
There is no requirement that guardianship proceedings be
heard by a different judge than the one who presided over the
abuse and neglect proceedings. N.J. Div. of Youth & Family Servs.
v. L.C., 346 N.J. Super. 435, 438-40 (App. Div. 2002). To the
contrary, there are policy justifications and efficiencies for
39 A-3701-15T1
generally having the same Family Part judge hear both matters.
Id. at 439.
In addition, "judges are constantly required to adjudicate
matters involving parties and related disputes which have come
before the judge in a different proceeding." Id. at 440. They
"are perfectly capable of recognizing the different issues
involved, different standards of proof required and different
remedies sought without 'prejudging' a defendant so as to implicate
due process concerns." Ibid. "Ultimately, the judge, on
appropriate application from a litigant, must consider whether her
involvement in a case warrants that judge recusing herself from
further consideration of the issues." Ibid.
Here, defendant never moved for recusal under Rule 1:12-2.
Moreover, we discern no evidence of improper bias in the judge's
handling of the case. His denial of the Division's April 2015
request for an extension of time for reunification was not
unreasonable, as the children had been in resource homes for more
than eighteen months. Nor does that denial constitute evidence
that he had unfairly pre-judged the guardianship proceedings.
As clearly set forth in the court's oral opinion, the judge
appropriately reached his guardianship conclusions based upon a
reasonable assessment of the entirety of the trial record. We
find no basis to set aside his careful judgment of this case.
40 A-3701-15T1
Affirmed.
41 A-3701-15T1