DCPP VS. T.U.B. AND J.E.C., IN THE MATTER OF THE GUARDIANSHIP OF C.I.B. (FG-07-0164-14, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4778-17T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

T.U.B.,

Defendant,

and

J.E.C.,

Defendant-Appellant.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF C.I.B.,

a Minor.
_____________________________

Submitted April 8, 2019 – Decided April 18, 2019

Before Judges Sabatino and Mitterhoff.
 On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0164-14.

Joseph E. Krakora, Public Defender, attorney for
appellant (James P. Gentile, Designated Counsel, on
the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Lisa J. Rusciano, Deputy Attorney
General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minor (Noel C. Devlin, Assistant Deputy
Public Defender, of counsel and on the brief).

PER CURIAM

This Title 30 guardianship matter brought by the Division of Child

Protection and Permanency ("the Division") returns to our court following a

limited remand we ordered in a published opinion dated May 22, 2017. See N.J.

Div. of Child Prot. & Permanency v. T.U.B., 450 N.J. Super. 210 (App. Div.

2017). In our opinion, we held that the special Title 9 hearsay exception codified

at N.J.S.A. 9:6-8.46(a)(4) allowing the admission of certain out-of-court

statements by children does not extend to Title 30 termination cases. Id. at 230.

Because the Family Part in this case admitted at trial and considered such

inadmissible hearsay, we remanded the case for reconsideration, directing the

trial court to ignore the hearsay statements in its analysis.

A-4778-17T2
2
 On remand, the judge who had presided earlier over the guardianship trial

reaffirmed her original determination to terminate the parental rights of

defendant J.E.C. ("the father") as to his son, C.I.B. ("Calvin"). 1 The father now

appeals that second judgment of termination. T.U.B. ("the mother") did not

appeal the initial judgment terminating her parental rights and was dismissed

from the litigation on remand. We affirm.

I.

The Facts

We summarize pertinent facts from the record, most of which were

presented in greater detail in our published opinion. Id. at 215-26.

Calvin was born in May 2008. The Division received a referral upon his

birth. The mother has eight other biological children with several different

fathers. The father also has other biological children. Id. at 215. The Division

had received several reports of abuse and neglect about the mother's children

prior to Calvin's birth. Ibid.

1
We use initials and pseudonyms to protect the privacy of the minor. R. 1:38-
3(d)(12).
A-4778-17T2
3
 In July 2009, the father was granted temporary residential custody of

Calvin, with the mother's consent. The father resided with his paramour T.C.,

T.C.'s two daughters, and T.C.'s son. Id. at 216.

In June 2012, the father was ordered to stay out of T.C.'s home, at which

time the court was apparently unaware that Calvin was also then residing there.

Id. at 217. Later that month, the Division received a referral from an East

Orange police officer who had responded to a call concerning T.C.'s home

because the mother had gone there to take physical custody of Calvin. The

officer had taken T.C. and Calvin to the police station because the mother was

demanding physical custody and the father's whereabouts were then unknown.

Id. at 217.

On June 22, 2012, the Division conducted a Dodd 2 removal of Calvin from

T.C.'s residence. Id. at 218. The trial court awarded the Division custody of

Calvin four days later. Ibid.

In August 2012, Calvin was evaluated at the Metro Regional Diagnostic

and Treatment Center ("RDTC") at Children's Hospital of New Jersey. The

RDTC reported that the child was "developmentally delayed in communication

2
A "Dodd removal" refers to the emergency removal of a child without a court
order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Youth
& Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
A-4778-17T2
4
skills, fine motor skills, problem solving skills, and personal social skills." Ibid.

According to the RDTC report, Calvin had been displaying "significant

emotional and behavioral problems including temper tantrums, defiance, and

oppositionality." Ibid.

In September 2012, another evaluation of Calvin was performed at the

RDTC. Ibid. This evaluation concluded Calvin exhibited "[s]low growth –

possible failure to thrive." Ibid. The RDTC recommended, among other things,

that Calvin continue to see a nutritionist, that his father participate in those

appointments, and that his father receive training on parenting disciplinary

methods as well as skills training to improve Calvin's eating behaviors and food

intake. Ibid.

The Family Part ordered weekly visitation between the father and Calvin

in June 2012. The Division accordingly referred the father to a program that

included components for therapeutic supervised visitation, a parenting group,

and skills training. The father began such weekly visitation in August 2012.

As of late October 2012, the father was compliant with his visitation with

Calvin. However, after that point, the father became inconsistent with his

visitation, and missed numerous scheduled visits. The record reflects the

A-4778-17T2
5
father's last visitation with Calvin was in 2014. Given this failure, the father's

visitation rights to Calvin were eventually suspended on October 19, 2015.

The father was referred to more parenting skills group sessions after the

filing of the Division's guardianship complaint in December 2013, but he failed

to attend. The father was again referred to parenting skills classes at another

location. He attended the intake session in March 2014, but failed to attend any

further sessions and was discharged from that program five weeks later.

During the course of the guardianship litigation, the Division repeatedly

scheduled the father for psychological evaluations by Elizabeth M. Smith,

Psy.D., approximately five times. The father missed all of these appointments.

The Trial Proofs

The Division presented four witnesses at the trial: Dr. Smith, who is an

expert in the fields of psychology and bonding; Emerald Irby, Calvin's

caseworker and custodian of the records; Ines Perez-Nin, a Division supervisor

who testified about hearsay statements by T.C.'s children alleging that the father

had sexually abused them; and Barry A. Katz, Ph.D., an expert in the fields of

psychology, psychosexual evaluations, sexual risk assessment and parenting. 3

3
Because we determined in our published opinion that the hearsay statements
were inadmissible, we do not expound upon or consider those allegations here.

A-4778-17T2
6
The father presented testimony from Laural Montgomery, Calvin's therapist at

Children's Specialized Hospital. The father did not testify and no other

witnesses testified on his behalf.

Dr. Smith performed bonding evaluations between Calvin and his resource

parent as well as between Calvin and the mother. Dr. Smith did not perform a

bonding evaluation with the father because he missed several scheduled

appointments.

Dr. Smith testified that Calvin was "basically confused" and "doesn't

know where he belongs." Calvin repeatedly stated to her that he did not have a

father anymore. According to Dr. Smith, Calvin "wants to belong somewhere"

and was "devastated by not being part of [his] family." Dr. Smith testified that

Calvin "needs to have a stable, safe home."

Caseworker Irby testified about the father's compliance record with

services and visitation. She also noted that the father did not have appropriate

housing because he lived with T.C., who was a substantiated perpetrator and did

not have custody of her own children.

Nor is there a need in this opinion to discuss the trial testimony of Dr. Katz or
Perez-Nin, which concerned those hearsay allegations of sexual abuse.
A-4778-17T2
7
 In June 2015, after the testimony of Dr. Smith, Dr. Katz, Perez-Nin, and

partial testimony by Irby was presented, the Division reported that Calvin had

been removed from his resource home, where he had been living for around

three years, due to concerns about abuse. After investigation, the Division

determined that Calvin's resource mother had used excessive corporal

punishment on Calvin. Calvin was accordingly placed in a different resource

home.

Irby resumed her testimony in January 2016. She recounted that Calvin

was living in the second of two successive resource homes since the removal

due to abuse. He had been living with that most recent resource family since

August 2015, where he had "shown great improvement, both at school and in

the resource home." She noted that Calvin was receiving behavioral health

services.

Irby described the Division's plans for what is known as "select home

adoption," the process for seeking adoptive homes, and the likelihood of finding

Calvin a placement. She indicated that, at that time, there were eight potential

homes for Calvin, and four additional homes if he were made legally free

through the termination of parental rights. She explained that the pool for

adoption generally becomes larger after such termination. She predicted the

A-4778-17T2
8
Division could locate an adoptive home for Calvin if he became legally free.

According to Irby, none of Calvin's needs presented a significant problem with

finding a home, especially with Calvin's more recent behavioral improvements.

In the defense's case, Calvin's therapist, Montgomery, testified that

Calvin's treatment goals were to improve his compliance with directions from

caregivers, teachers, and herself, as well as to improve his mood regulation and

social interaction. Regarding a prior recommendation she made that the father

not be allowed visitation with Calvin, Montgomery testified Calvin had been "in

the midst of an acute disruption from one placement to another," and had become

"highly dysregulated." This disruption manifested by Calvin banging his head

against a wall and other behaviors requiring a session to end early and assistance

to get Calvin safely to a car. Montgomery stated her concerns about Calvin's

well-being if visitations with the father were resumed had been based on Calvin's

instability at the time, the disruption in Calvin's placement, the father's history

of inconsistent visitation, and the ongoing termination proceedings that raised

the specter that Calvin would not see his father again.

The trial judge issued an initial decision on February 10, 2016, terminating

both the father's and mother's parental rights to Calvin. In her decision, the

judge stated, among other things, that she could "not ignore" the hearsay

A-4778-17T2
9
allegations by T.C.'s daughters that they have been sexually abused by Calvin's

father. T.U.B., 450 N.J. Super. at 244. The father appealed the court's decision,

but the mother did not.

The Remand

In our published opinion, we remanded this case on prongs one, two, and

four of the statutory factors because the first judgment terminating parental

rights had relied on inadmissible hearsay evidence of sexual abuse by the father

of T.C.'s daughters. Id. at 214. We gave the judge express instructions to

"determine whether, if the hearsay allegations of sexual abuse are disregarded,

she would still conclude that the Division met its burden of proving statutory

prongs one, two, and four by clear and convincing evidence." Id. at 245. In

doing so, we afforded the judge "the discretion to permit updated or other

additional relevant proofs from the parties, including updated expert opinions.

Such discretion, however, shall be exercised subject to the condition that the

Division may not attempt to re-prove the truth of the girls' hearsay allegations

by other means." Id. at 246. However, we did affirm the trial court's "discrete

findings with respect to prong three concerning the provision of services and the

absence of other suitable relatives to serve as caretakers." Id. at 214.

A-4778-17T2
10
 On remand, the trial judge initially inquired of the parties as to their

positions concerning any need for updated or other additional relevant proofs.

The Division maintained that the record from the original trial was sufficient to

terminate the father's parental rights, but the father sought to introduce a defense

psychological evaluation that was conducted post-remand. The father also

requested renewed visitation with Calvin, a request that the Division and Law

Guardian opposed and the trial judge denied.

The judge requested the Division contact Dr. Katz to obtain an updated

expert opinion that did not consider the inadmissible hearsay evidence. The

Division reported back to the judge that Dr. Katz would need to conduct an

updated full evaluation of the father to render such an opinion. Consequently,

the judge ordered the father to attend such an evaluation. The judge emphasized

to the father, who was attending the conference by phone, the importance of him

appearing for this evaluation. The judge specifically informed the father that

the court would not accept the father's recent psychological evaluation if the

judge was not also able to consider an evaluation from the Division.

Despite these admonitions, the father failed to attend the post-remand

evaluation scheduled with Dr. Katz. Accordingly, the trial judge barred the

A-4778-17T2
11
admission of the new evaluation by the father's expert, and proceeded to decide

the remand without any further evidence.

The Present Appeal

This appeal by the father from the remand ensued. He argues that because

of the Division's failure to supplement the record on remand, there is not

adequate substantial and credible evidence to support the trial court's post-

remand decision as to prongs two and four. 4

II.

It is well settled that the termination of a parent's rights to raise his or her

children raises issues of a constitutional dimension. See, e.g., In re

Guardianship of K.H.O., 161 N.J. 337, 346 (1999); In re Guardianship of J.C.,

129 N.J. 1, 9-10 (1992). The Legislature has recognized the importance of this

constitutionally protected relationship between a parent and a child by imposing

a high burden upon the Division to terminate those rights in a guardianship case.

That burden calls for the Division to prove, by clear and convincing evidence,

the following four prongs under N.J.S.A. 30:4C-15.1(a):

4
The father does not dispute the court's findings as to prong one. As we have
already noted, the finding on prong three was conclusively upheld in our earlier
opinion.
A-4778-17T2
12
 (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); see also N.J. Div. of Youth &
Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986)
(reciting the four controlling standards later codified in
Title 30).]

In considering the father's arguments on appeal, we must be cognizant that

our scope of appellate review is limited. N.J. Div. of Youth & Family Servs. v.

G.L., 191 N.J. 596, 605 (2007). "Appellate courts must defer to a trial judge's

findings of fact if supported by adequate, substantial, and credible evidence in

the record." Ibid. An appellate court must also defer to the trial court's

credibility determinations, and to the Family Part's special expertise in the field

A-4778-17T2
13
of domestic relations. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J.

527, 552-53 (2014). That said, the trial court's interpretation of the law and

legal findings are reviewed pursuant to a de novo standard. Id. at 552.

Having applied these well-settled principles, we affirm the trial court's

rulings on remand and the corresponding renewed final judgment of

guardianship. We do so substantially for the sound reasons articulated by the

trial judge. We add a few amplifying comments.

There is substantial credible evidence in the record to support the trial

court's findings under the disputed prongs two and four and the resultant

termination of the father's parental rights. As the trial court detailed, there is

abundant proof that the father is unlikely to eliminate the harm to Calvin. His

poor track record as a parent offers little reason to believe he will provide a

secure and safe home for Calvin.

The trial court was entitled to accept the Division's expert's testimony as

persuasive. City of Long Branch v. Liu, 203 N.J. 464, 491 (2010) (explaining

the fact finder has the role of assessing the credibility and weight to be given to

expert testimony); Angel v. Rand Express Lines Inc., 66 N.J. Super. 77, 85-86

(App. Div. 1961) (same). Moreover, a child's interests in permanency must

override a parent's desire to prolong the process towards a doubtful

A-4778-17T2
14
reunification. N.J. Div. of Child Prot. & Permanency v. R.L.M., 236 N.J. 123,

146-47 (2018) (emphasizing the importance of prompt judicial determinations

of issues in cases involving children awaiting permanency); N.J. Div. of Youth

& Family Servs. v. S.F., 392 N.J. Super. 201, 209-10 (App. Div. 2007) (same).

We are unpersuaded by the father's claim that the absence of updated

information adduced on remand signifies there is not enough evidence in the

record to support the trial court's decision. The remand in this case was for the

discrete purpose of allowing the trial judge to "determine whether, if the hearsay

allegations of sexual abuse are disregarded, she would still conclude that the

Division met its burden of proving statutory prongs one, two, and four by clear

and convincing evidence." T.U.B., 450 N.J. Super. at 245. As our published

opinion clearly stated, the trial court possessed "the discretion to permit updated

or other additional proofs from the parties." Id. at 246. The court did not

misapply that discretion on remand, particularly given the circumstances

presented here.

There is ample evidence to support the trial court's finding that the father

"is unwilling or unable to eliminate the harm" facing the child. Prior to the entry

of the initial final judgment, the father had failed to complete recommended

services and he frequently did not attend scheduled visitations, particularly as

A-4778-17T2
15
time passed. The father's continuation of his pattern of non-compliance on

remand, illustrated by failing to attend his scheduled examination with Dr. Katz,

despite the court's clear admonitions, further supports the court's decision. In

addition, although the record does not include any updated information about

the father's living situation at the time of the remand, the father had a history of

failing to provide adequate housing.

We further uphold the trial court's decision not to renew the father's

visitation with Calvin, given the length of time that had passed since the last

visitation, the limited scope of the remand, and the opposition of the Division

and the Law Guardian to such visits.

Additionally, we reject the father's argument that the Division was

required to provide him with services during the remand period. The remand

was prompted by a specific and narrow evidential issue concerning hearsay

allegations by T.C.'s children that did not affect the question of reasonable

services. Moreover, in the first appeal we specifically affirmed "the court's

discrete findings with respect to . . . the provision of services and the absence of

other suitable relatives to serve as caretakers." T.U.B., 450 N.J. Super. at 214.

Lastly, as to prong four of the best interests test, there is sufficient credible

evidence to support the trial court's finding that termination of the father's

A-4778-17T2
16
parental rights will not do Calvin more harm than good. Although Calvin

remains in select home adoption status, the caseworker's testimony at the

guardianship trial indicated that the Division would have more resources

available to find an adoptive home for Calvin after the termination of parental

rights. Moreover, Calvin's Law Guardian during the remand proceedings

repeatedly – and rightly – noted the importance of achieving permanency for

Calvin. See R.L.M., 236 N.J. at 146-47.

The trial court reasonably concluded that the termination of the father's

parental rights should be beneficial to Calvin, given the father's history of non-

compliance, Dr. Smith's expert testimony, and the prospect that termination will

allow the Division to make full use of its resources to find an adoptive home for

Calvin. Prong four was therefore met.

In sum, we discern no basis to set aside the trial court's well-supported

and well-reasoned decision to terminate the father's parental rights.

Affirmed.

A-4778-17T2
17