DCPP VS. R.K.W. AND S.L.W., IN THE MATTER OF THE GUARDIANSHIP OF M.E.W. (FG-08-0052-17, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-4837-17T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

R.K.W.,

Defendant-Appellant,

and

S.L.W.,

Defendant.
____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF M.E.W.,

a Minor.
____________________________

Submitted September 10, 2019 – Decided October 2, 2019

Before Judges Messano, Ostrer and Vernoia.
 On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FG-08-0052-17.

Joseph E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Catherine F. Reid, Designated Counsel, on
the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Salima E. Burke, Deputy Attorney
General, on the brief).

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

PER CURIAM

Defendant R.K.W. is the father of nine children; six of whom were born

to defendant and his wife, S.L.W. (Sophia), during their marriage.1 The couple's

two youngest children, M.E.W. (Martin) and N.A.W. (Norbert), were born in

March 2007 and February 2006, respectively. We set forth the family's

involvement with the Division of Child Protection and Permanency (the

Division) in our prior opinion, N.J. Div. of Child Protection & Permanency v.

S.W., 448 N.J. Super. 180, 183–87 (App. Div. 2017), in which we reversed the

1
We use initials and fictitious names to protect the privacy of the parties. We
adopt the same fictitious names we used in our prior opinion.
A-4837-17T2
2
Family Part's November 2013 order finding that defendant had "abused or

neglected his children[.]" Id. at 194.

While the appeal was pending, defendant and Sophia separated and

remained living apart. Id. at 184. The children, who had temporarily been

returned to Sophia's custody after their initial removal, were returned to the

Division's custody in August 2013, after Sophia became homeless. Id. at 187.

The children were placed in a resource home at that time. Ibid. The Division,

which had initiated termination proceedings, eventually dismissed the pending

guardianship complaint and resumed efforts to reunify defendant and the

children, as recommended by the Division's expert, James Loving, Psy.D. The

Division provided services to the family.

However, during 2016, defendant's participation in services became

sporadic, and he continued to lack adequate housing permitting reunification

with his sons. In October, defendant suffered a near-fatal heroin overdose en

route to a supervised visitation session and was taken by ambulance to the

hospital for treatment. Defendant entered an inpatient treatment program, and

his housing remained unsuitable for reunification with the children. In January

2017, the court approved a permanency plan for termination of defendant's and

A-4837-17T2
3
Sophia's parental rights, and the Division filed a second guardianship

complaint.2

The trial took place over non-successive days during February, April and

May 2018 before the same judge who entered the original Title Nine fact-finding

order we reversed in our prior opinion.3 The judge excluded from evidence all

Division records prior to August 15, 2013, the date of the second removal of the

children, and the Division's caseworker, Michelle Pisarek, and Dr. Loving

testified on the Division's behalf. Defendant and his paramour, O.L. (Olivia),

also testified.

In her oral opinion placed on the record three weeks after the conclusion

of testimony, the judge provided an "outline" of her decision because she was in

the midst of another trial, recognizing it did not include "all the detail" she

needed. She further announced she would "do an appendix, as well[.]"

The judge began by stating she had "pored over the caseworker notes,"

citing an exhibit she had ruled inadmissible before trial. She then found the

Division had proven by clear and convincing evidence the first three prongs of

2
On May 2, 2017, the court entered an order declaring Sophia, who had never
appeared after the filing of the second guardianship complaint, in default.
Sophia never participated in the proceedings thereafter.
3
Defendant did not object to the judge sitting on the guardianship trial.
A-4837-17T2
4
the statutory best-interests-of-the-child test, N.J.S.A. 30:4C-15.1(a), as to both

Martin and Norbert. As to the fourth prong, whether "[t]ermination of parental

rights will not do more harm than good[,]" N.J.S.A. 30:4C-15.1(a)(4), for

reasons more fully explained below, the judge found the Division met its burden

as to Martin, but not as to Norbert. The judge entered two orders, one

terminating defendant's and Sophia's parental rights to Martin, and a second,

dismissing the guardianship complaint as to Norbert and re-opening the

litigation on the FN docket. 4

Approximately five months later, after defendant filed his notice of

appeal, the judge issued an unsigned six-page "[a]ppendix." It contains slightly

more than a single paragraph summarizing the judge's findings as to prongs one

and two, and a chronological series of events documenting the judge's "[p]rong

three findings." 5

Before us, defendant contends we should reverse the order terminating his

parental rights to Martin because the Division failed to satisfy by clear and

convincing evidence the second, third and fourth prongs of the statutory test.

4
The Division and Norbert have not appealed from this order. Sophia has not
appealed the termination of her parental rights to Martin.
5
The judge later issued a signed copy of the appendix.
A-4837-17T2
5
He also argues the judge considered documents that were never admitted into

evidence at trial, and her opinion, even as supplemented by the "appendix,

fail[ed] to comply with Rule 1:7-4[(a)]." The Division and Martin's Law

Guardian urge us to affirm the termination order.

We have considered the arguments in light of the record and applicable

legal standards. We affirm.

I.

Under our well-known standards of review, we must uphold the trial

court's findings if "supported by adequate, substantial, and credible evidence."

N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We defer

to the judge's factual findings because she had "the opportunity to make first-

hand credibility judgments about the witnesses . . . [and] ha[d] a 'feel of the case'

that can never be realized by a review of the cold record." N.J. Div. of Youth

& Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth &

Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). We accord even greater

deference to the Family Part's factual findings because of its "special jurisdiction

and expertise in family matters[.]" N.J. Div. of Youth & Family Servs. v. M.C.

III, 201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413

(1998)).

A-4837-17T2
6
 "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide

of the mark' should an appellate court intervene and make its own findings to

ensure that there is not a denial of justice." E.P., 196 N.J. at 104 (quoting N.J.

Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). However,

"[a] trial court's interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special deference." R.G., 217 N.J.

at 552–53 (quoting Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

"The focus of a termination-of-parental-rights hearing is the best interests

of the child." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447

(2012) (citing N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 110

(2011)). The four statutory prongs "are neither discrete nor separate. They

overlap to provide a composite picture of what may be necessary to advance the

best interests of the children." M.M., 189 N.J. at 280 (quoting N.J. Div. of Youth

& Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)).

We focus on the three prongs defendant addresses in his appeal.

Prong Two

Prong Two requires the Division prove by clear and convincing evidence

that:

A-4837-17T2
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 (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[.]

[N.J.S.A. 30:4C-15.1(a)(2).]

"[T]he inquiry centers on whether the parent is able to remove the danger facing

the child." F.M., 211 N.J. at 451 (citing In re Guardianship of K.H.O., 161 N.J.

337, 352 (1999)). "Prong two may also be satisfied if 'the child will suffer

substantially from a lack of . . . a permanent placement and from the disruption

of [the] bond with foster parents.'" Ibid. (alteration in original) (quoting K.H.O.,

161 N.J. at 363); see also N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J.

Super. 76, 111 (App. Div. 2004) ("[T]he . . . statute[] reflect[s] reforms

acknowledging the need for permanency of placements by placing limits on the

time for a birth parent to correct conditions in anticipation of reuniting with the

child.").

In finding prong two was satisfied as to both boys, the judge determined

that despite a plethora of services provided to defendant, he failed to comply

with reunification efforts and relapsed into drug use several times. In her

A-4837-17T2
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appendix, the judge noted defendant suffered "three relapses" after the Division

removed the children.

Defendant argues "it was reasonably foreseeable" he could provide a "safe

and stable home to his children[,]" because although the judge ordered

termination of parental rights as to Martin, she said in her oral opinion, but not

in the order, that the Division "will have to create a plan . . . [for] reunification

between [Norbert] and [defendant]." Defendant notes that approximately one

month later, in July 2018, another judge entered an order permitting the Division

to return Norbert to defendant's home without further court order.

However, at the time of trial, defendant was living with Olivia in a one-

bedroom apartment and was unable to provide sufficient housing to reunify the

family. In addition, Dr. Loving's opinion, which the judge found credible, was

that defendant's prior substance abuse and repeated relapses, despite periods of

sobriety, posed a "risk for neglect in terms of meeting [his sons'] basic needs."

Dr. Loving also noted that when he evaluated defendant seven months earlier,

defendant was living in a half-way house and "ha[d] a long history of housing

instability." Although defendant "had a basic plan [to address his family's

housing needs] . . . he was . . . not in a position to carry out that plan."

A-4837-17T2
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 We also do not accept defendant's contention that the judge's decision

regarding Norbert reflects a lack of sufficient evidence as to prong two regarding

Martin. A fair interpretation of the judge's decision regarding Norbert

demonstrates that her focus was on the insufficiency of the Division's prong four

proofs, not the prong two evidence. We conclude the Division satisfied prong

two of the statutory test.

Prong Three

N.J.S.A. 30:4C-15.1(a)(3) requires the Division make "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 to "consider[] alternatives to

termination of parental rights[.]" Defendant does not assert that the Division

failed to provide adequate services to him and the family; indeed, the judge

outlined those services in detail both in her oral opinion and in the appen dix.

Rather, he contends the Division never considered alternatives to

termination, such as kinship legal guardianship (KLG) or continued placement

in foster care, and the judge never articulated her findings in this regard. The

argument lacks sufficient merit to warrant extended discussion. R. 2:11-

3(e)(1)(E).

A-4837-17T2
10
 There is nothing in the record demonstrating defendant ever asserted there

were relatives willing or able to have Martin placed with them. Moreover, it is

well established that KLG is a permanent option only "when adoption 'is neither

feasible nor likely' and '[KLG] is in the child's best interest.'" N.J. Div. of Youth

& Family Servs. v. P.P., 180 N.J. 494, 512 (2004) (quoting N.J.S.A. 3B:12A-

6(d)(3)–(4)). "[W]hen the permanency provided by adoption is available,

[KLG] cannot be used as a defense to termination of parental rights . . . ." Id. at

513. Although they demonstrated some early equivocation, by the time of trial,

Martin's resource family expressed a desire to adopt him. We reject defendant's

arguments as to prong three.

Prong Four

The fourth prong serves as a "'fail-safe' inquiry guarding against an

inappropriate or premature termination of parental rights." F.M., 211 N.J. at

453 (quoting G.L., 191 N.J. at 609). "The question ultimately is not whether a

biological mother or father is a worthy parent, but whether a child's interest will

best be served by completely terminating the child's relationship with th[e]

parent." E.P., 196 N.J. at 108. Typically, "the [Division] should offer testimony

of a well[-]qualified expert who has had full opportunity to make a

comprehensive, objective, and informed evaluation of the child's relationship

A-4837-17T2
11
with both the natural parents and the foster parents." F.M., 211 N.J. at 453

(quoting M.M., 189 N.J. at 281). However, when the court is presented with "a

clear and compelling record warranting the termination of parental rights,"

termination is appropriate "even in the absence of evidence showing that [th e

child] has bonded with his foster parents." N.J. Div. of Youth & Family Servs.

v. F.H., 389 N.J. Super. 576, 623 (App. Div. 2007).

In considering the prong four evidence, the judge noted defendant's

extensive history of drug abuse and relapses, and the Division's almost exclusive

custody of the children since August 2012. The judge referenced defendant's

bona fide efforts prior to the October 2016 relapse, after which defendant

stopped visiting with his sons, and the disappointment that resulted fro m the

children's perspective as a result of not seeing their father.

Defendant contends there was no evidence of a bond between Martin and

his foster parents, or that they intended to adopt the child. However, Dr.

Loving's testimony was unrebutted. Although he did not perform a bonding

evaluation between Martin and his resource parents, Dr. Loving cited "some

basic information that really does point to [Martin] having attachments to these

caregivers and wanting to stay with . . . them[.]" Dr. Loving opined that both

boys "would not suffer serious and enduring harm" if defendant's parental rights

A-4837-17T2
12
were terminated. The lack of permanency, on the other hand, was "inherently

damaging."

As noted, there was evidence of the resource parents' intention to adopt

Martin. Pisarek's testimony, which the judge found credible, clearly

demonstrated the resource parents, initially hesitant to adopt, now expressed

their intention to do so. Before us, defendant asserts the evidence of an intention

to adopt was based solely on Pisarek's hearsay testimony and Division records,

which he claims included inadmissible hearsay. However, defendant never

objected to Pisarek's testimony or admission of these particular records at trial.

Had he done so, the Division presumably could have called the foster parents as

witnesses. See M.C. III, 201 N.J. at 341–42 (finding no "fundamental injustice"

requiring relaxation of the "invited error doctrine" where defense counsel made

no objection and "the Division could have taken steps to satisfy any evidentiary

requirements").

Defendant again asserts that the trial judge's decision regarding Norbert

demonstrates the lack of clear and convincing prong four evidence as to Martin.

However, "courts have recognized that terminating parental rights without any

compensating benefit, such as adoption, may do great harm to a child." E.P.,

196 N.J. at 109 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.

A-4837-17T2
13
591, 610–11 (1986)). "Such harm may occur when a child is cycled through

multiple foster homes after a parent's rights are severed." Ibid.

Here, the evidence demonstrated that Norbert had special needs, and he

had been placed and moved multiple times to successive resource homes. This

lack of permanency had adverse effects on the child. The Division was unable

to find a suitable adoptive home, nor was it foreseeable that the Division would

find one in the near future. As we see it, the judge recognized potential

exacerbation of these adverse effects from Norbert's continued "cycl[ing]

through multiple foster homes," ibid., if defendant's parental rights were

terminated. She concluded the Division failed to prove prong four as to Norbert.

The prong four evidence as to Martin, however, was sufficient.

II.

Defendant argues we must vacate the judgment of guardianship because

the trial judge considered documents that were not in evidence. He cites to

Division records that were excluded at the beginning of trial and nevertheless

referenced in the judge's appendix.

We acknowledge that a portion of the judge's appendix references

information that was not in evidence. However, these are little more than

chronological recitations of services the Division furnished to defendant and the

A-4837-17T2
14
family, both before and more extensively after the August 2013 second removal.

We are not convinced that the judge's reference to the inadmissible evidence

was essential to her decision. Moreover, there is ample evidence within the

record, including other parts of the appendix based on defendant's conduct and

the Division's services after the children's removal, to support the court's

findings.

We find no basis to reverse on these grounds.

III.

Lastly, defendant contends that we must vacate the judgment because the

judge failed to comply with Rule 1:7-4(a), specifically, she failed to "make the

threshold factual findings necessary for [her] fourth prong legal conclusion as

to Martin" by not assessing Martin's bond with his resource parents as compared

to his attachment to defendant. We agree with the Law Guardian's assessment

of the record, i.e., that the judge's oral "decision and appendix could have been

more organized or detailed," but these shortcomings were not fatal to our

meaningful review or to the underlying judgment.

"In a non-jury civil action, the trial court shall make findings of fact and

state its conclusions of law." M.C. III, 201 N.J. at 342 (citing R. 1:7-4(a)).

"That is, 'the trial court must state clearly its factual findings and correlate them

A-4837-17T2
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with the relevant legal conclusions.'" Ibid. (quoting Curtis v. Finneran, 83 N.J.

563, 570 (1980)). "Failure to make explicit findings and clear statements of

reasoning 'constitutes a disservice to the litigants, the attorneys, and the

appellate court.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Curtis, 83

N.J. at 569–70).

In her oral opinion, the judge discussed the relationship between Martin

and defendant, and she considered Dr. Loving's bonding evaluation and trial

testimony in this regard. She also considered the relationship that Martin

enjoyed with his resource parents, both as described by the child, Dr. Loving's

assessment of the records, and Pisarek's testimony.

While we do not countenance the judge's rambling discussion of the trial

evidence, we are convinced by our own independent assessment of the record

that her conclusions were "supported by 'substantial and credible evidence on

the record'" and are entitled to our deference. F.M., 211 N.J. at 448 (quoting

M.M., 189 N.J. at 279).

Affirmed.

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