C.Y.R. AND C.S. VS. C.M. (FD-12-1805-15, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-2764-16T2

C.Y.R., f/k/a C.Y.S.
and C.S.,1

Plaintiffs-Appellants,

v.

C.M.,

Defendant-Respondent.
_____________________________

Argued April 12, 2018 – Decided June 13, 2018

Before Judges Simonelli, Rothstadt and Gooden
Brown.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FD-12-1805-15.

Jennifer E. Presti and Lynne Strober argued
the cause for appellants (Mandelbaum Salsburg,
PC, attorneys; Jennifer E. Presti, on the
briefs).

Joy A. Anderson argued the cause for
respondent (Law Office of Joy Anderson, LLC,
attorneys; Joy A. Anderson, on the brief; Jeff
Thakker, of counsel and on the brief).

1
We use initials and fictitious names to identify the
participants in this matter pursuant to Rule 1:38-3(d).
PER CURIAM

This matter involves a third-party custody dispute over

three-year-old E.M. (Edward) between his biological father,

defendant C.M. (Conrad), and the child's maternal aunt and uncle,

plaintiffs C.Y.R. (Catherine) and C.S. (Charles) (collectively,

plaintiffs). Following a ten-day custody trial, the court held

plaintiffs failed to rebut the presumption of custody in favor of

Conrad by clear and convincing evidence of exceptional

circumstance based on psychological parentage. We agree and

affirm.

I.

Background Facts

Edward was born in October 2014. C.M.S. (Carol) is Edward's

biological mother. Carol and Conrad were not married, but they

lived together and jointly raised Edward until Carol's death.

In November 2014, the family became involved with the New

Jersey Division of Child Protection and Permanency (Division) when

Conrad was arrested for simple assault following a domestic

violence incident with Carol. The charges were later dismissed

when Carol declined to pursue the matter or seek a restraining

order. The Division found that abuse and neglect of Edward was

"not established" against either parent, but provided them

2 A-2764-16T2
domestic violence counseling. The Division closed the file after

the couple completed counseling.

On April 21, 2015, Carol died of a stab wound. According to

Conrad, he and Carol were arguing over her text messaging another

person, a physical altercation ensued, Carol retrieved a knife,

they struggled over the knife, and Carol accidentally stabbed

herself in the chest. Following an investigation, the Middlesex

County Prosecutor's Office did not charge Conrad in connection

with Carol's death.

Edward was in the apartment at the time of the altercation.

The police notified the Division and asked Conrad's sister to take

custody of Edward, which the Division approved. The Division

initiated an investigation, but did not seek emergent removal of

Edward from Conrad because they found he was safe with his father.

However, on the day Carol died, plaintiffs filed an emergent order

to show cause (OTSC), seeking temporary custody of Edward.

Catherine certified that defendant was "suspected of murdering

[her] sister[,]" she feared for Edward's life, Edward would not

be cared for, and Carol designated them in her Last Will and

Testament to be the child's guardians.

On April 21, 2015, the court entered an ex parte OTSC granting

plaintiffs temporary legal and residential custody of Edward

"pending the completion of the investigation against . . . [Conrad]

3 A-2764-16T2
and pending further [o]rder of the [c]ourt[.]"2 The court set May

27, 2015 as the return date for the OTSC.

On April 27, 2015, Conrad filed a pro se motion for an order

granting him sole legal and physical custody of Edward, and

subsequently retained an attorney to represent him. On April 29,

2015, Conrad visited the Division's office and discussed his plan

for Edward's return to his custody. He reported that Carol's

family was calling him a murderer and expressed his concern that

his son would be alienated from him while in their care. He also

reported he was diagnosed with Post Traumatic Stress Disorder

resulting from witnessing Carol's death, and was actively engaged

in therapeutic services. He expressed his willingness to comply

with whatever the Division requested of him and agreed to undergo

a psychological evaluation and sign release forms in connection

with his mental health care.

On May 13, 2015, Conrad underwent a psychological evaluation

with Carolina Mendez, Ph.D. to assess his parenting ability, mental

status, and treatment needs. Mendez recommended that he undergo

a more comprehensive, in-depth evaluation of his risk of engaging

2
It is unclear from the record whether the court was referring
to the Prosecutor's investigation, the Division's investigation,
or both.

4 A-2764-16T2
in domestic violence in the future, as well as individual therapy

that incorporated domestic violence counseling.

Mendez testified at the custody hearing, but not as an expert

witness. She testified consistent with her report and reiterated

her concern about Conrad's history of domestic violence and

criminal activity.3 She re-emphasized the need for defendant to

undergo a more in-depth evaluation and recommended his parenting

time be supervised time until then.

In a May 27, 2015 order, the court continued plaintiffs'

temporary legal and physical custody of Edward, granted Conrad

supervised parenting time every Saturday for two hours, and ordered

Conrad to continue individual therapeutic services the Division

offered and cooperate with Mendez's recommendation that he undergo

a more in-depth evaluation. Catherine's husband, J.R. (John), a

law enforcement officer, supervised Conrad's parenting time.

On June 12, 2015, the Division completed its investigation

and found "[t]he allegations of neglect, substantial risk of

physical injury/environment injurious to health and welfare . . .

to [Edward] . . . [were] not established." However, the Division

3
Defendant apparently has convictions for eluding law enforcement
and resisting arrest, playing of loud radio, phonograph or musical
instrument, obstructing the administration of law or governmental
function, and noncompliance with posted restrictions at a State
park. There are no judgments of conviction in the appellate
record.

5 A-2764-16T2
asked the court to order Conrad to comply with updated

recommendations Mendez made after she reviewed additional records,

specifically, that he complete anger management, undergo a

substance abuse evaluation, and participate in a parenting skills

program.

On June 19, 2015, Conrad visited the Division's office and

inquired about parenting skills classes. He expressed his

continued willingness to comply with the Division's

recommendations, as well as his concern that he was not receiving

the full amount of supervised parenting time the court granted

him.

In a July 2, 2015 order, the court ordered Conrad to comply

with Mendez's updated recommendations and continued his supervised

parenting time. In a September 17, 2015 case management order,

the court set discovery deadlines and continued plaintiffs'

temporary legal and physical custody of Edward and Conrad's

supervised parenting time.

On September 30, 2015, Conrad completed a parenting skills

program. On October 26, 2015, the Division advised the court that

Conrad was participating in counseling through the Fatherhood

Training Program and an anger management program.

In a November 2, 2015 order, the court increased Conrad's

supervised parenting time to four hours every Saturday and granted

6 A-2764-16T2
him additional supervised parenting time on Wednesday evenings,

to be supervised by his parents, rather than John. On November

16, 2015, Conrad completed the Fatherhood Training Program and

also completed an anger management program.

On February 19, 2016, the Division advised the court that

Conrad completed parenting skills and anger management programs,

but had not engaged in domestic violence counseling. The Division

also advised that Conrad declined to complete a substance abuse

evaluation and home inspection on the advice of his attorney. The

court subsequently directed Conrad to complete a substance abuse

evaluation, participate in domestic violence counseling, and

submit to a home inspection.

On March 10, 2016, Conrad completed a substance evaluation.

He did not test positive for any illicit substances and there was

no recommendation for substance abuse treatment. On March 14,

2016, the Division advised the court that it had referred Conrad

to domestic violence counseling, but the provider would not accept

him due to the pending criminal investigation of Carol's death.

On March 24, 2016, the Division completed an inspection of Conrad's

home and found no safety issues. Thereafter, at the conclusion of

the first day of the custody hearing on June 8, 2016, the court

granted Conrad unsupervised overnight parenting time on

alternating weekends and Wednesday.

7 A-2764-16T2
 The Parties' Experts

Plaintiffs' expert, Diane Travers, a licensed social worker,

conducted a bonding evaluation between Edward and Catherine. The

evaluation included three home visits and collateral interviews

with Catherine and John, their children, Catherine's parents, and

Carol's friend, T.V. A significant portion of the evaluation

involved completion of the Groves Bonding Checklist, which rates

preschoolers to assess their attachment to adults.

Travers noted in her report there was a secure attachment and

bond between Edward and Catherine, which they formed prior to

Carol's death. Travers concluded there would be a negative impact

on Edward, both physically and mentally, if the bond were broken

through removal from Catherine's custody. She testified at the

custody hearing consistent with her report and opined there was a

"psychological parent bond" between Catherine and Edward.

Plaintiffs presented no evidence that Charles had formed a

psychological parent bond with Edward.

Conrad's expert, Andrew Brown, Ph.D., a psychologist,

conducted a bonding evaluation between Conrad and Edward that

included Conrad's other children. Brown stated in his report that

he observed Conrad engaging positively with Edward, and concluded

Edward was "genuinely enjoying the company of his natural father"

8 A-2764-16T2
and "display[ed] comfort, security and confidence" with him.

Brown found Edward "relat[ed] to [his father] in a natural and

relaxed manner[,]" there were "no episodes of hesitance or

reluctance to be in close proximity to [his father,]" and the

"[a]ffection [was] reciprocated, eye contact [was] mutual and

interactions [were] intimate." Brown concluded "[t]hese were all

sign of a child who has formed a deep attachment." Brown also

noted that Edward "demonstrate[d] that he is attached to his half

siblings."

Brown determined there was a secure attachment between Conrad

and Edward and "a potential that any arrangement leading to the

forced severance of this attachment will result in irreparable

psychological harm and trauma to [Edward]." He opined "[w]ithin

a reasonable degree of psychological certainty," that Edward "is

attached to his natural father" and the attachment should not be

severed. He recommended "that the goal of family reunification

be vigorously pursued and executed as soon as possible."

Brown also conducted a psychological evaluation of Conrad.

He noted in his report that Personality Assessment Inventory

revealed that Conrad did "not present with evidence for the

presence of psychopathology or aberrant personality

functioning[.]" The Culture-Free Self-Esteem Inventory, which

measured Conrad's perception of self, resulted in scores in the

9 A-2764-16T2
"high" range. The Beck Depression Inventory revealed that Conrad

was not clinically depressed. The Child Abuse Potential Inventory

revealed that Conrad had no indications toward the potential for

physical child abuse. The Parenting Stress Index did not reveal

any high parenting stress or defensiveness in Conrad. Finally,

Brown found that Conrad's IQ was in the average range, and he "did

not display any behavior symptomatic of thought disorder or

psychosis." Brown concluded that Conrad's "[p]rognosis for

parenting [was] good."

Brown testified at the hearing consistent with his two

reports. He also testified that Conrad was friendly, loving,

caring, and considerate, did "not pose as a threat to harm his

. . . son" and "ha[d] the cognitive template required for

parenting." Brown opined that Conrad did "not currently

demonstrate any emotional or behavioral issues that would prevent

him from executing parenting" and "demonstrat[ed] the capacity to

mitigate separation [from plaintiffs]." Brown reiterated that

Edward had a "deep emotional attachment to his father" and would

suffer "problems, in terms of his development[,]" if their

relationship was severed.

The Division's Caseworkers

Division caseworkers confirmed that: the Division never

sought to remove Edward from Conrad; it had no safety concerns for

10 A-2764-16T2
the child when with his father; Conrad completed the requisite

services; and the Division's recommended provider for domestic

violence counseling rejected him because of the pending criminal

investigation. A caseworker verified that Conrad was cooperative

throughout the Division's investigation and had visited the

Division's office to complain that the Division had not come to

inspect his home despite his numerous calls to the Division.

Another caseworker verified that Conrad called her "all the time"

and visited her office several times to discuss the case with her

and her supervisor.

The Trial Court's Decision

On March 7, 2017, the trial judge issued a comprehensive oral

opinion, holding that plaintiffs failed to rebut the presumption

of custody in favor of Conrad by clear and convincing evidence of

exceptional circumstances based on psychological parentage. The

judge conducted the two-step analysis for third-party custody

disputes set forth in Watkins v. Nelson, 163 N.J. 235 (2000),

which first required plaintiffs to rebut the presumption by clear

and convincing evidence of parental unfitness, abandonment, gross

misconduct, or existence of exceptional circumstances affecting

the welfare of the child. The judge found plaintiffs did not

11 A-2764-16T2
establish unfitness, abandonment, gross misconduct, or any

wrongdoing by Conrad.4

The judge acknowledged that proof of psychological parentage

could constitute exceptional circumstances. However, the judge

determined plaintiffs did not prove exceptional circumstances

because they did not establish prong one of the psychological

parentage test set forth in V.C. v. M.J.B., 163 N.J. 200, 223

(2000), which required clear and convincing proof that Conrad

consented to and fostered the parental relationship between

plaintiffs.

The judge found plaintiffs failed to show Conrad was

physically or emotionally absent, unable, or incapable of

performing his parental duties. The judge also found that

plaintiffs had not formed a psychological parentage bond with

Edward and even if they did, Conrad did not consent to or foster

it. The judge granted Conrad legal and physical custody of Edward,

and ordered him to foster plaintiffs' relationship with the child,

cooperate with visits with plaintiffs, and have Edward attend

therapy to assist in his development.

4
Plaintiffs do not challenge these findings.

12 A-2764-16T2
 II.

On appeal, plaintiffs contend Catherine is entitled to

custody of Edward because they presented proof that she is his

psychological parent under the exceptional circumstances standard

set forth in Watkins and V.C. Plaintiffs concede that Conrad did

not consent to Catherine's formation and establishment of a parent-

like relationship with Edward, but argue he impliedly consented

and acquiesced to Catherine becoming Edward's psychological parent

by his delay for over two years in completing evaluations and

services the Division recommended, which caused Edward to remain

in Catherine's custody. In the alternative, plaintiffs argue that

Conrad's actual consent was not necessary because, by his delay,

he yielded authority for Catherine to become Edward's

psychological parent.5

Our review of a trial judge's factual findings, following a

non-jury trial, is limited. Elrom v. Elrom, 439 N.J. Super. 424,

433 (App. Div. 2015). "Generally, 'findings by the trial court

are binding on appeal when supported by adequate, substantial,

credible evidence.'" Ibid. (quoting Cesare v. Cesare, 154 N.J.

5
Plaintiffs cite to unpublished opinions to support their
arguments. However, unpublished opinions do not constitute
precedent or bind us. Trinity Cemetery Ass'n v. Twp. of Wall, 170
N.J. 39, 48 (2001); R. 1:36-3.

13 A-2764-16T2
394, 411-12 (1998)). In Family Part matters, this "[d]eference

is especially appropriate when the evidence is largely testimonial

and involves questions of credibility." Cesare, 154 N.J. at 412

(citation omitted). "Reversal is warranted only when a mistake

must have been made because the trial court's factual findings are

'so manifestly unsupported by or inconsistent with the competent,

relevant and reasonably credible evidence as to offend the

interests of justice[.]'" Elrom, 439 N.J. Super. at 433 (quoting

Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474,

484 (1974)). "Consequently, when a reviewing court concludes

there is satisfactory evidentiary support for the trial court's

findings, 'its task is complete and it should not disturb the

result[.]'" Ibid. (quoting Beck v. Beck, 86 N.J. 480, 496 (1981)).

"Deference is appropriately accorded to factfinding; however, the

trial judge's legal conclusions, and the application of those

conclusions to the facts, are subject to our plenary review."

Ibid. (quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div.

2013)). "Finally, legal conclusions are always reviewed de novo."

Id. at 433-34 (citation omitted). Applying the above standards,

we discern no reason to reverse.

As a threshold matter, we note plaintiffs did not cite to any

statute in their complaint supporting the court's jurisdiction

over this matter. Throughout the proceeding, the parties and the

14 A-2764-16T2
judge referenced N.J.S.A. 9:2-4, N.J.S.A. 9:2-5, and N.J.S.A. 9:2-

9, without specifically setting forth which one supported

jurisdiction.

However, N.J.S.A. 9:2-4, the best interests of the child

standard, "refers only to parents and does not refer to third

parties[,]" Watkins, 163 N.J. at 244, and N.J.S.A. 9:2-56 does not

apply because Carol was not Edward's sole custodian at the time

of her death. We conclude that jurisdiction fell under N.J.S.A.

9:2-9, which provides as follows:

When the parents of any minor child or the
parent or other person having the actual care
and custody of any minor child are grossly
immoral or unfit to be intrusted with the care
and education of such child, or shall neglect
to provide the child with proper protection,
maintenance and education, or are of such
vicious, careless or dissolute habits as to
endanger the welfare of the child or make the
child a public charge, or likely to become a
public charge; or when the parents of any
minor child are dead or cannot be found, and
there is no other person, legal guardian or

6
N.J.S.A. 9:2-5 provides as follows, in pertinent part:

In case of the death of the parent to whom the
care and custody of the minor children shall
have been awarded by the Superior Court, or
in the case of the death of the parent in
whose custody the children actually are, when
the parents have been living separate and no
award as to the custody of such children has
been made, the care and custody of such minor
children shall not revert to the surviving
parent without an order or judgment of the
Superior Court to that effect.

15 A-2764-16T2
 agency exercising custody over such child; it
shall be lawful for any person interested in
the welfare of such child to institute an
action in the Superior Court, Chancery
Division, Family Part, in the county where
such minor child is residing, for the purpose
of having the child brought before the court,
and for the further relief provided by this
chapter.

[(Emphasis added).]

"N.J.S.A. 9:2-10 then allows a court, in an action brought by a

third party pursuant to N.J.S.A. 9:2-9, to award custody of the

child to that third party." Watkins, 163 N.J. at 244.

When read together, N.J.S.A. 9:2-4, N.J.S.A. 9:2-9, and

N.J.S.A. 9:2-10:

indicate that in a custody dispute between a
parent and a third party, the public policy
of this State is that a presumption exists in
favor of the parent. A third party can
overcome that presumption by satisfying the
standard required for termination of the
rights of a non-consenting parent: unfitness,
abandonment, gross misconduct, or
"exceptional circumstances."

[Watkins, 163 N.J. at 244-45 (emphasis
added).]

The court must conduct a two-step analysis when a third party

seeks custody of a child over the child's natural parent. First,

a third party can overcome the presumption in favor of the natural

parent by presenting clear and convincing evidence of parental

unfitness, abandonment, gross misconduct, or the existence of

16 A-2764-16T2
exceptional circumstances affecting the welfare of the child.

Watkins, 163 N.J. at 253-55.

Second, once the first prong is met, the court can then

consider the best interests of the child test articulated in

N.J.S.A. 9:2-4(c). Id. at 254. "[I]n custody determinations

between a fit parent and a third party, as opposed to claims made

between two fit parents, the child's best interests become a factor

only after the parental termination standard has been met, rather

than the determinative standard itself." Id. at 253 (emphasis

added). "[T]he best interest of the child cannot validly ground

an award of custody to a third party over the objection of a fit

parent without an initial court finding that the standard for

termination of the rights of a non-consenting parent or the

'exceptional circumstances' prong has been satisfied." Id. at

255.

This case only involves exceptional circumstances. The

exceptional circumstances doctrine is grounded in the court's

power of parens patriae to protect minor children from serious

physical or psychological harm. Id. at 246-47. This standard

"always requires proof of serious physical or psychological harm

or a substantial likelihood of such harm" and is to be determined

on a case-by-case basis. Id. at 248. Proof that a third party

has become a child's psychological parent by assuming the role of

17 A-2764-16T2
his or her legal parent who has been unable or unwilling to

undertake the obligations of parenthood will suffice to establish

exceptional circumstances. Id. at 254; V.C., 163 N.J. at 219.

Such proof will place the third party "in parity" with the legal

parent. V.C., 163 N.J. at 227-28, 230.

To demonstrate the existence of a psychological parentage,

the third party must prove four elements:

[1] the legal parent must [have] consent[ed]
to and foster[ed] the relationship between the
third party and the child; [2] the third party
must have lived with the child; [3] the third
party must [have] perform[ed] parental
functions for the child to a significant
degree; and most important, [4] a parent-child
bond must [have] be[en] forged.

[Id. at 223.]

As to element one, the legal parent must have been a "participant

in the creation of the psychological parent's relationship with

the child" by

ced[ing] over to the third party a measure of
parental authority and autonomy and grant[ing]
to that third party rights and duties vis-à-
vis the child that the third party's status
would not otherwise warrant[, thereby creating
the likelihood that the third party would
develop a profound bond with the child.]

[Id. at 224.]

"[T]he focus is on [the legal parent's] intent during the formation

and pendency of the parent-child relationship." Ibid. Absent

18 A-2764-16T2
consent, the legal parent "has the absolute ability to maintain a

zone of autonomous privacy for [himself] and [the] child." Ibid.

The record confirms that Conrad did not consent to plaintiffs'

custody of Edward or to the formation and establishment of a

parentage relationship between Catherine and the child. The record

also confirms that Conrad did not impliedly consent or acquiesce

to the creation of a psychological parent relationship or yield

authority for Catherine to become Edward's psychological parent.

Rather, the record shows that Conrad's separation from Edward was

entirely involuntary, he contested plaintiffs' custody from the

very outset of this litigation and took immediate steps to regain

custody, and he actively sought out and cooperated with the

Division in order to be reunified with his son. Any delay in

completing the Division's services was not attributable to

Conrad's affirmative or unjustifiable actions.

Further, Conrad was never absent physically or mentally from

Edward or found to be unable or incapable of performing his

parental duties. He remained in his son's life throughout this

protracted litigation, maintained a deep and secure bond with his

son, took active steps to regain custody, and the Division found

him to be a capable parent who posed no risk of harm to the child.

We are satisfied the judge correctly found that plaintiffs failed

to rebut the presumption of custody in favor of Conrad by clear

19 A-2764-16T2
and convincing evidence of exceptional circumstances based on

psychological parentage.

III.

Plaintiffs argue the court erred by transferring custody to

Conrad without taking his testimony and making findings of fact

or conclusions of law as to his credibility, character, or ability

to care for Edward under the best interests of the child standard

articulated in N.J.S.A. 9:2-4(c). Plaintiffs also argue the court

failed to apply an adverse inference against Conrad after he

asserted his Fifth Amendment right against self-incrimination.

These arguments lack merit.

Watkins made clear that, if the third party seeking custody

over a natural parent fails to satisfy the first prong of the

Watkins test, the inquiry ends and the court need not consider the

best interests of the child second prong. 163 N.J. at 253. Because

the judge properly found plaintiffs failed to satisfy the first

prong of the Watkins test, he was not required to consider the

best interests of the child articulated in N.J.S.A. 9:2-4(c).

Accordingly, there was no need for Conrad's testimony to determine

Edward's best interests.

Nevertheless, for the sake of completeness, we address

plaintiffs' argument that the court must always base its custody

decision on all factors relevant to the child's best interests.

20 A-2764-16T2
Plaintiffs cite to In re Baby M, 109 N.J. 396, 456 (1988) to

support this argument. There, a biological father entered into a

surrogacy contract with a surrogate mother, who refused to

relinquish custody. Id. at 412. The court invalidated the

surrogacy contract as being against public policy, but nonetheless

found that the biological father was entitled to custody based on

the best interests of the child after considering various factors,

including each parent's stability, finances, and employment, among

other factors. Id. at 457-60. This case is distinguishable

because Conrad was entitled to a presumption of custody in his

favor and the judge did not need to consider the best interests

of the child because plaintiffs failed to rebut that presumption.

Watkins, 163 N.J. at 253.

Plaintiffs cite to D.A. v. R.C., 438 N.J. Super. 431, 454

(App. Div. 2014), to argue that, despite the testimony of mental

health practitioners, it is the court's ultimate responsibility

to determine what custody arrangement is in the best interests of

the child. In D.A., where a parent sought to change the child's

custody arrangement, the trial court failed to consider the

relevant statutory framework. Id. at 433. We remanded the matter

with instructions to do so. Id. at 461. In contrast here, the

judge made repeated reference to the requisite authority and

properly applied it. Thus, D.A. does not apply.

21 A-2764-16T2
 Plaintiffs also cite to Terry v. Terry, 270 N.J. Super. 105,

118 (App. Div. 1994), a child custody case which required trial

courts to set forth the statutory criteria for any custody

analysis. The judge here amply satisfied Terry through his repeated

reference to the Watkins standard.

Lastly, plaintiffs allege the judge abdicated his parens

patriae role when he rendered a decision without hearing Conrad's

testimony, contending that such failure "created a substantial

potential for irreparable physical and psychological harm."

However, the record does not support plaintiffs' bare allegations,

and it is clear the judge was not required to hear Conrad's

testimony because plaintiffs failed to overcome their burden under

the first prong of the Watkins test. Moreover, there was ample

evidence that a return of custody to Conrad was in Edward's best

interests, including expert testimony. Accordingly, the judge did

not err in rendering a custody decision without having heard

Conrad's testimony.

In addition, the judge did not err in failing to draw an

adverse inference from Conrad's refusal to testify after asserting

his Fifth Amendment right against self-incrimination. Courts may

draw an adverse inference where a party refuses to testify in a

civil matter. See State, Dep't of Law & Public Safety, Div. of

Gaming Enf't v. Merlino, 216 N.J. Super. 579, 587 (App. Div. 1987).

22 A-2764-16T2
The inference may be "drawn only if there is other evidence

supporting an adverse finding; it must not alone constitute the

evidence of guilt." Ibid. (citation omitted). An adverse

inference is a discretionary evidential ruling by the trial court.

See Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J.

Super. 448, 474 (App. Div. 2012).

While the adverse inference is discretionary, trial courts

have alternative remedies, such as barring that party from offering

any testimony, including testimony which inures to their benefit.

Attor v. Attor, 384 N.J. Super. 154, 170 (App. Div. 2006). Such

alternatives are consistent with the ruling in Mahne v. Mahne, 66

N.J. 53, 61 (1974), a divorce case in which the husband invoked

the Fifth Amendment as to allegations of adultery and the Supreme

Court allowed trial courts "broad choices of sanctions when dealing

with good faith exercises of the privilege[.]" Further, in Attor,

a matrimonial matter cited by plaintiffs, the wife invoked the

Fifth Amendment as to separate immigration proceedings, fearing

that she could be implicated for providing false testimony to

immigration officials. Attor, 384 N.J. Super. at 161. Although

the court found her invocation was improper because she was not

really at risk of criminal charges, we determined that, had her

invocation been proper, the trial court "should then either have

drawn an adverse inference against defendant or struck her

23 A-2764-16T2
testimony[.]" Id. at 170. Here, the judge followed Attor and

Mahne by barring Conrad's testimony on his behalf.

Next, plaintiffs cite In re Guardianship of D.J.M., 325 N.J.

Super. 150, 155-56 (Ch. Div. 1999), to illustrate an example

wherein a biological mother was compelled to testify despite

invoking the Fifth Amendment as to charges that she sexually

assaulted the minor child. However, trial court opinions do not

constitute precedent and are not binding on us. S & R Assocs. v.

Lynn Realty Corp., 338 N.J. Super. 350, 355 (App. Div. 2001). In

any event, the case does not apply. There, the biological mother

requested a stay of the Division's guardianship action pending

resolution of criminal charges, citing the Fifth Amendment. Id.

at 152-53. The court denied a stay, explaining that the delay

necessitated by a stay was contrary to the child's best interests

and need for permanency. Id. at 161-62. The court also explained

that the biological mother "may testify and invoke the Fifth

Amendment in response to particular inquiries." Ibid. Because

the judge here was not required to reach the best interests of the

child test articulated in N.J.S.A. 9:2-4, Conrad's testimony,

including particular inquiries outside the criminal investigation

and Carol's death, was not necessary and there was no need to

compel his testimony or draw an adverse inference.

24 A-2764-16T2
 Plaintiffs also cite New Jersey Division of Youth & Family

Services v. S.S., 275 N.J. Super. 173 (App. Div. 1994) to argue

in favor of an adverse inference. However, that case concerned a

parent who refused to testify after the Division had successfully

shifted the burden for her to prove non-culpability, and her "oral

testimony was simply one means of several available to her to

demonstrate her non-culpability." Id. at 181. Here, Conrad had

no burden of proof and no reason to testify. Thus, there was no

need for an adverse inference.

We are satisfied the judge committed no error by transferring

custody to Conrad without taking his testimony or in failing to

apply an adverse inference after invocation of the Fifth Amendment.

Affirmed.

25 A-2764-16T2