DCPP VS. J.O. AND C.O.IN THE MATTER OF THE GUARDIANSHIP OF C.O. AND K.O.(FG-02-0031-15, BERGEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)(CONSOLIDATED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0233-15T3
A-0291-15T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

J.O. and C.O.,

Defendants-Appellants.
________________________________

IN THE MATTER OF THE GUARDIANSHIP
of C.O. and K.O., Minors.
_________________________________

Submitted October 3, 2017 – Decided October 25, 2017

Before Judges Reisner and Gilson.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FG-02-0031-15.

Joseph E. Krakora, Public Defender, attorney
for appellant J.O. (Anastasia P. Winslow,
Designated Counsel and on the brief).

Lesnevich, Marzano-Lesnevich, Trigg, O'Cathain
& O'Cathain, LLC, attorneys for appellant C.O.
(Amanda S. Trigg, of counsel and on the
brief).
 Christopher S. Porrino, Attorney General,
attorney for respondent (Jane S. Blank, Deputy
Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minors (Todd Wilson,
Designated Counsel, on the brief).

PER CURIAM

The parents of two children appeal from an August 26, 2015

judgment terminating their parental rights to their daughters and

granting guardianship of the children to the Division of Child

Protection and Permanency (Division). They also appeal from an

October 12, 2016 order denying their motions to vacate or

reconsider the judgment. We affirm because the evidence presented

by the Division at the guardianship trial and a subsequent

evidentiary hearing clearly and convincingly established the four

prongs necessary for terminating parental rights in accordance

with the best interests of the children. See N.J.S.A. 40:4C-

15.1(a).

I.

J.O. (Jill), the mother, and C.O. (Charles), the father, are

the parents of C.O. (Cara), born in 2007, and K.O. (Kathy), born

in 2008.1 The Division became involved with the family in January

1
To protect privacy interests and for ease of reading, we use
initials and fictitious names for the parents and child. See R.
1:38-3(d)(12).

2 A-0233-15T3
2012. Initially, the Division had concerns related to unsanitary

living conditions and the children's hygiene. The children's

teacher reported that Cara and Kathy came to school several times

with fecal matter on their clothing and school supplies and that

their faces, nails, and clothing were often dirty.

Thereafter, the Division received reports related to domestic

violence by Charles against Jill. In March 2012, Jill described

two instances of domestic violence by Charles against her. The

Division referred Jill and Charles for counseling and recommended

psychological evaluations and parenting assessments. The Center

for Evaluation and Counseling (CEC) conducted evaluations and

concluded that Jill was a "high-risk parent for child neglect" and

Charles was "at-risk for aggressive and violent behaviors given

his significant anger management difficulties[.]"

In April 2013, the Division learned that Jill was in a

relationship with a convicted sex offender, who was registered

under Megan's Law, N.J.S.A. 2C:7-1 to -11. The Division also

learned that the offender was living in the family's home with the

children. Accordingly, the Division instituted a Safety

Protection Plan to prevent the sex offender from having contact

with the children. On multiple occasions, however, Jill and

Charles violated the plan by allowing the sex offender to stay at

the home and socialize with the children.

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 By July 2013, the Division had increasing concerns regarding

Jill and Charles repeatedly allowing their young daughters to be

in the presence of and exposed to the sex offender. The Division

was also concerned that Charles continued to struggle with anger

management issues, and that the relationship between Charles and

Jill was volatile and having a negative impact on the children.

Accordingly, in July 2013, the Division conducted an emergent

removal of the children. Since then, the children have been in

the care of relatives and, most recently, they have lived with

their paternal grandmother for a sustained period.

Both before and after the removal of the children, the

Division provided the parents with various services, including

psychological evaluations, individualized counseling, anger

management programs, parenting classes, and alternatives to

domestic violence training (ADV). Jill's and Charles's attendance

at treatment and counseling services was inconsistent, and they

did not complete many of the services arranged by the Division.

A five-day guardianship trial was conducted between March and

April 2015, before Judge John A. Conte. The Division presented

testimony from the children's paternal uncle and a Division

caseworker, and expert testimony from Dr. Robert Miller. Dr.

James Reynolds presented expert testimony on behalf of Charles.

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 Based on the evidence at trial, Judge Conte found that the

Division presented clear and convincing evidence of the four prongs

necessary to terminate both Jill's and Charles's parental rights.

N.J.S.A. 30:4C-15.1(a). In his 130-page written opinion, Judge

Conte made detailed findings concerning the parents' abuse and

neglect of Cara and Kathy that placed them at risk of harm. He

found that Jill and Charles were unwilling or unable to eliminate

the harm facing Cara and Kathy despite having been provided with

a number of services designed to help them achieve reunification.

Judge Conte also found that the Division made reasonable efforts

to reunify Jill and Charles with Cara and Kathy and explored, but

properly ruled out, certain family members as potential caregivers

of Cara and Kathy. Finally, relying on the expert testimony of

Dr. Miller, Judge Conte found that Cara and Kathy would suffer

harm if they were removed from their paternal uncle and

grandmother, and it would not do more harm than good to terminate

both Jill's and Charles's parental rights with the plan that Cara

and Kathy be adopted by their paternal uncle.

Both parents appealed from the August 26, 2015 judgment.

While that appeal was pending, the paternal uncle permanently left

the grandmother's home and made it clear that he no longer intended

to adopt his nieces. The children remained in the care of the

paternal grandmother, who expressed a commitment to adopting them.

5 A-0233-15T3
 Jill, and subsequently Charles, filed Rule 4:50-1 motions to

remand the matter for reconsideration of the guardianship judgment

in light of the changed circumstances regarding the permanency

plan, and to address other evidentiary issues that arose during

the trial.

On remand, Judge Conte settled the record, and thereafter,

the matter was transferred to Judge William R. DeLorenzo. To

address the change in the permanency plan, Judge DeLorenzo directed

the parties to conduct bonding evaluations between the grandmother

and each of the children. The judge found no basis to address the

other evidentiary issues raised and limited his review to whether

the fourth prong of the best interests test was satisfied.

On September 30, 2016, Judge DeLorenzo conducted a hearing

and took expert testimony from Dr. Miller, Dr. Reynolds, and Dr.

Goldstein. Each expert had conducted bonding evaluations between

the children and the paternal grandmother. All three experts

found that the children had a strong, secure bond with the paternal

grandmother and that she was an appropriate caregiver to the

children. Accordingly, Judge DeLorenzo found clear and convincing

evidence to satisfy the fourth prong of the best interests test.

On October 12, 2016, Judge DeLorenzo issued a written opinion

detailing his findings and entered an order enforcing the August

26, 2015 guardianship judgment.

6 A-0233-15T3
 II.

Jill and Charles each appeal from the August 26, 2015 judgment

and October 12, 2016 order. They argue that the Division failed

to present clear and convincing evidence necessary for terminating

their parental rights. Further, they contend that due to changed

circumstances regarding the permanency plan, the guardianship

judgment should be vacated. Jill also argues that the court erred,

on remand, by refusing to consider evidence of her completion of

ADV and address the applicability of the Americans with

Disabilities Act (ADA) to services provided by the Division.

The scope of our review of an appeal from an order terminating

parental rights is limited. N.J. Div. of Youth & Family Servs.

v. R.G., 217 N.J. 527, 552 (2014). We uphold a trial judge's

factual findings if they are "supported by adequate, substantial,

and credible evidence." Ibid. "We accord deference to fact

findings of the family court because it has the superior ability

to gauge the credibility of the witnesses who testify before it

and because it possesses special expertise in matters related to

the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.

420, 448 (2012). We will not overturn a family court's factual

findings unless they "went so wide of the mark that the judge was

clearly mistaken." N.J. Div. of Youth & Fam. Servs. v. G.L., 191

N.J. 596, 605 (2007). We do not, however, give "special deference"

7 A-0233-15T3
to the court's interpretation of the law. D.W. v. R.W., 212 N.J.

232, 245 (2012).

When considering termination of parental rights, the court

focuses on the "best interests" of the children. In re

Guardianship of K.H.O., 161 N.J. 337, 347 (1999). In striking a

balance between a parent's constitutional rights and the

children's fundamental needs, courts employ a four-prong test

under N.J.S.A. 30:4C-15.1(a), which requires clear and convincing

evidence that:

(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 [or her] 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.

These four criteria "are neither discrete nor separate, but are

interrelated and overlap." N.J. Div. of Youth & Family Servs. v.

8 A-0233-15T3
L.J.D., 428 N.J. Super. 451, 479 (App. Div. 2012). Together they

"provide a comprehensive standard that identifies a child's best

interests." K.H.O., supra, 161 N.J. at 348.

Having reviewed all of the arguments presented by Jill and

Charles in light of the record and law, we affirm substantially

for the reasons set forth in Judge Conte's and Judge DeLorenzo's

thorough and well-reasoned written opinions. We add a few

additional comments.

Jill and Charles each challenge certain factual findings of

the four prongs necessary for terminating their parental rights

under N.J.S.A. 30:4C-15.1(a). As previously summarized, Judge

Conte found clear and convincing evidence of all four prongs. On

hearing the motion for reconsideration, Judge DeLorenzo found no

basis to disturb Judge Conte's findings with respect to the first

three prongs. Further, the record amply supports Judge DeLorenzo's

finding that the Division clearly and convincingly showed that

termination of parental rights and adoption by the paternal

grandmother would not do more harm than good. In so holding,

Judge DeLorenzo credited and relied on the experts' testimony. We

have no reason to disturb that reliance.

Jill contends that on remand the court erred in failing to

consider her completion of ADV as evidence of changed circumstances

that support relief from the judgment. Domestic violence between

9 A-0233-15T3
Jill and Charles was not the only basis for terminating their

parental rights. Jill presents no evidence to show that she has

taken the necessary steps to protect her children from exposure

to the sex offender. Thus, a risk of harm to the children's

safety, health, and development still exists. Jill has not

demonstrated sufficient evidence of changed circumstances that

would justify vacating the judgment. Jill has also not shown that

termination of her parental rights is not in the children's best

interests.

Jill also argues that the trial court failed to consider a

United States Department of Health and Human Services and United

States Department of Justice directive (Directive) regarding the

applicability of the ADA to family court matters. There are

several flaws with this argument. First, Jill raised this argument

for the first time in her motion for reconsideration, rather than

at trial. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super.

455, 463 (App. Div.), certif. denied, 174 N.J. 544 (2002) (holding

that a party is not entitled to reconsideration based on new or

additional information if that information was available at the

time of trial). Moreover, we review the denial of reconsideration

under an abuse of discretion standard. Hous. Auth. of Morristown

v. Little, 135 N.J. 274, 283 (1994). We find no such abuse.

10 A-0233-15T3
 Second, Jill never informed the trial court what disabilities

she suffered from. Indeed, there is no evidence in the record

that she has a recognized disability. Jill merely asserts that

the court failed to consider the Directive in making its findings

on the third prong of the best interests analysis. Jill does not,

however, explain which services should have been provided or how

the provided services failed to accommodate her disability. As

previously stated, the Division provided Jill with multiple

services aimed at reunification with the children, many of which

she did not use or attend. Accordingly, the trial court's finding

that the Division satisfied the third prong is supported by

substantial credible evidence in the record.

Judge Conte and Judge DeLorenzo both correctly analyzed the

relevant law and concluded that the Division had met the legal

requirements for a judgment of guardianship. See N.J.S.A. 30:4C-

15.1(a); K.H.O., supra, 161 N.J. at 347-48. All of the factual

findings are supported by substantial credible evidence. See

F.M., supra, 211 N.J. at 448-49. We discern no basis to disturb

Judge Conte's and Judge DeLorenzo's factual findings, and we agree

with their legal conclusions.

Affirmed.

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