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NOT FOR PUBLICATION WITHOUT THE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-3788-15T4
NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
H.D.C.,
Defendant-Appellant,
and
R.B.,
Defendant.
________________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF T.R.C., a minor.
________________________________________
Submitted May 2, 2017 – Decided June 28, 2017
Before Judges Messano and Grall.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Essex County, Docket No. FG-07-194-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Anna Patras, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M.
Silkowitz, Assistant Attorney General, of
counsel; Casey Woodruff, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (James J.
Gross, Designated Counsel, on the brief).
PER CURIAM
H.D.C. appeals a judgment of guardianship terminating her
parental rights to one of her four children, Tara.1 Tara's
father, R.B., does not appeal. R.B. voluntarily surrendered his
parental rights, but he conditioned his surrender on Tara's
adoption by his sister, E.B., or her husband, H.Y. An order
entered with the judgment authorizes the Division of Child
Protection and Permanency (Division) to file a complaint for
Tara's adoption by E.B. and H.Y. The Division and the law
guardian oppose H.D.C.'s appeal.
For the reasons that follow, we conclude that the Division
failed to establish termination is in Tara's best interest, as
defined in N.J.S.A. 30:4C-15.1(a)(1)-(4). Accordingly, we
remand for further proceedings in conformity with this opinion.
1
We have assigned a fictitious name to each of H.D.C.'s children
to protect their confidentiality.
2 A-3788-15T4
I.
The Division removed H.D.C.'s children from their home in
January 2014. At that time, her son Tyler2 was twelve; her
daughter Tara was nine; her son Andy was two; and her daughter
Ann was seven months old. The children were removed from the
home they and H.D.C. shared with Andy's and Ann's father, A.A.W.
The Division removed the children on an emergency basis
pursuant to N.J.S.A. 9:6-8.29, after substantiating a report of
neglect and inadequate supervision evidenced by the children's
poor hygiene, Tara's and Tyler's frequent absences from school,
and Tara's and Tyler's burning Andy while they were playing with
a cigarette lighter at home unsupervised. The substantiation
came from the school's attendance records, foul odors emanating
from the children, their soiled mattresses and clothing, Andy's
healing burns, and Tara's account of how the burns were
inflicted.
After removing the children, the Division separated them,
by gender rather than age, and placed them with two Division-
approved resource families. Two days later, a judge approved
the removal and placement, directed H.D.C. and A.A.W. to return
2
Tyler's father, E.B., Jr., was not located and default was
entered against him on July 6, 2015.
3 A-3788-15T4
on February 24, 2014, and directed the Division to provide
weekly supervised visitation and promptly identify relatives
willing to care for the children.
H.D.C. and A.A.W. never disputed the Division's
justification for removal. They acknowledged placing the
children in "an unsafe and unsanitary home environment, which
exposed them to a substantial risk of harm." They admitted
failing to "properly attend to the children's hygiene and
grooming" and "properly supervise the children on the day that
[Andy] was burned." And, they stipulated that those acts and
omissions constituted abuse or neglect. On that stipulation,
the judge found H.D.C.'s and A.A.W.'s conduct caused "a child's
physical, mental, or emotional condition to be impaired or in
imminent danger of becoming impaired . . . ." N.J.S.A. 9:6-
8.21(c)(4).
The Division commenced its efforts to identify and address
the causes for removal of the children when H.D.C. returned to
court on February 24, and H.D.C. submitted to a drug test that
was positive for marijuana. Apart from one refusal to submit to
4 A-3788-15T4
a test in July 2014, H.D.C. did not have another positive
result.3
On February 25, 2014, H.D.C. submitted to a psychological
evaluation by Elizabeth E. Groisser, Psy.D.4 During that
evaluation, H.D.C. acknowledged she had been smoking marijuana
for several months and on a daily basis since her children were
removed. She claimed to have a history of panic attacks
formerly controlled by medication and explained she was using
marijuana to address anxiety. H.D.C. admitted she was enraged
when she learned her older children burnt Andy and hit Tara and
Tyler with a belt. H.D.C. stressed, and the Division caseworker
confirmed, there was no evidence of injury attributable to that
discipline.
3
In its brief on appeal, the Division erroneously refers to a
positive test for marijuana on February 13, 2014. The positive
test-result the Division references is from January 13, 2104,
and it was done in connection with an unsuccessful complaint for
custody filed by a relative in a non-dissolution case. The
trial judge recognized the date and circumstance of this test in
his careful opinion.
4
The trial court properly excluded complex opinions and
diagnoses included in reports prepared by experts who did not
testify at trial. Accordingly, we do not address them.
In contrast, the judge ruled, again properly, that H.D.C.'s
admissions and the recommendations made by non-testifying
experts would be admitted for the limited purpose of evaluating
the adequacy of the Division's efforts and H.D.C.'s compliance.
Accordingly, we discuss such admissions and recommendations.
5 A-3788-15T4
Dr. Groisser recommended: parenting classes; a drug abuse
assessment; outpatient treatment; a psychiatric evaluation to
determine whether H.D.C. would benefit from medication for
anxiety5; and individual psychotherapy to develop skills to deal
with "emotion dys-regulation" and anger.
H.D.C. initially declined treatment for drug abuse, but in
April she submitted to an assessment and commenced treatment in
the Bridge's Stepping Stones Program the day after she was
admitted. By that time, Andy and Ann had been removed from
their resource families and placed with A.A.W.'s parents.
In April, 2014, Tara, who was still living with a resource
family, was evaluated by a clinical psychologist, Brett A.
Biller. He reported Tara expressed interest in returning to her
mother, recalled her mother doing "nice things" with her, and
reported enjoying her weekly visits with H.D.C. Tara knew her
mother had to "do something important" before Tara could return
home and hoped to return soon.
Tara did not know why she and Tyler were with different
resource families, and she mentioned that Tyler helped her with
homework and played games with her. Tara also described
5
During a subsequent substance abuse evaluation, H.D.C. reported
that she was last treated for anxiety in Summer 2013 and was
supposed to return.
6 A-3788-15T4
positive interactions with her maternal grandmother in Georgia,
and her maternal grandfather who lived closer. The child
admitted to being worried "about things with the family" and
wishing her "mother's attitude" and yelling would change.
For Tara, Dr. Biller recommended: family therapy to assist
her with discussing her feelings and understanding such
discussions would not jeopardize her relationships; a mentoring
program; a psychological evaluation of H.D.C. to see if she has
the appropriate insight to serve her children's needs; and a
delay of reunification until H.D.C. was "able to maintain a
secure physical and emotional home environment" and Tara was
able to "safely communicate her feelings to her mother."
Apart from a December 8, 2014 order indicating that H.D.C.
opposed mentoring for Tara, the record on appeal does not
disclose any other services the Division offered for Tara.
In May 2014, Tara was placed with E.B., and H.Y.; Tyler was
still living with a resource family. H.D.C., who been
participating in the Stepping Stones program, requested and was
given the opportunity to attend extra sessions. Thereafter,
however, she missed six sessions in May. When the program-
coordinator warned that H.D.C. was at risk of being discharged
on May 30, H.D.C.'s attendance improved. She missed five
appointments in June and two in August. H.D.C. was discharged
7 A-3788-15T4
from Stepping Stones on August 12, 2014, with a recommendation
that she receive "behavioral health counseling" and take any
"medication that might be prescribed."
H.D.C. received the psychiatric evaluation. Ten days
before that evaluation, H.D.C. was taken to the hospital by
ambulance with severe symptoms of a panic attack, and six days
after the evaluation, H.D.C. stipulated to abuse and neglect.
The psychiatrist, Dr. Ambrose O. Mgbako, M.D., recommended
H.D.C. receive the services of a psychiatrist for medication
monitoring and cognitive behavioral therapy to handle panic
attacks.
According to the program director for Stepping Stones,
H.D.C.'s anxiety was still "untreated" in September 2014. The
director reported that H.D.C. said she intended to seek mental
health services at United Behavioral Health Center in July but
had not followed through.
H.D.C commenced an eight-week parenting program with Family
Connections starting on November 3, 2014. That program covered
parenting styles, discipline, establishing and enforcing family
rules, safety, peer pressure, sexual abuse prevention, anger
management and parent self-care. She successfully completed
that program on December 22, 2014.
8 A-3788-15T4
H.D.C.'s effort came too late. On December 8, 2014, the
judge approved the Division's request to file a complaint for
termination of H.D.C.'s parental rights to all four children.6
The December 8 order includes several reasons for the court's
approval of the Division's decision to proceed with termination.
H.D.C. had: "just re-started parenting classes, although the
case has been open for nearly one year"; not followed through
with recommendations of evaluating clinicians; failed to attend
substance abuse treatment and counseling as recommended; not
received "psychotropic medication monitoring"; not made
meaningful progress toward reunification; not demonstrated
commitment to parenting; and, continued to share a home in
deplorable condition with A.A.W.
Throughout the litigation, H.D.C. and A.A.W. regularly
appeared for weekly visitations with the children. The December
8 order includes a description of H.D.C.'s and A.A.W.'s behavior
during those visitations. This description became important at
trial because the only clinical psychologist who did bonding
evaluations in this case, Dr. Peter DeNigris, relied upon it in
6
At that time, the Division also sought termination of the
fathers' respective parental rights — R.B.'s to Tara, A.A.W.'s
to Andy and Ann, and E.B. Jr.'s to Tyler.
9 A-3788-15T4
concluding that H.D.C. and Tara did not have a healthy bond.7
The order states: there were "interactions" that were "not
particularly positive"; the adults focused their "attention" on
the "younger children," while "largely" ignoring "the older
children"; and H.D.C. was observed intimidating Tara.
The Division filed its complaint for guardianship on
January 30, 2015. By that time, H.D.C. had completed parenting
classes and commenced individual sessions "to address parenting
strategies and her past history of panic attacks."
The court ordered psychological evaluations of H.D.C. and
the children's respective fathers and bonding evaluations in
March 2015. In July, Tyler was placed with his maternal
grandmother in Georgia, and the first bonding evaluation was
done in September.
During the hiatus pending bonding evaluations, H.D.C. did
well. She continued to pass every drug test, and on July 30,
2015, Family Connections reported she had succeeded in meeting
all goals set for individual counseling and developing parenting
strategies and effective means for dealing with stress.
7
Dr. DeNigris did not review reports on the visits prepared by
the supervisors. We know that because he testified that he
listed all materials he reviewed in his report and the list does
not include those reports.
10 A-3788-15T4
The problem at that point was that H.D.C. and A.A.W. had
planned to co-parent all four children, as they had been before
the children's removal. Because A.A.W.'s recent drug screens
were positive for marijuana, H.D.C. and A.A.W. developed a plan
to eliminate that barrier to reunification. During an August 3,
2015, case management conference, A.A.W.'s attorney advised that
they agreed to abandon their plan to co-parent and would
separate if one of them were ready to parent before the other.
Up to that point, H.D.C. had no reason to look for different
housing or a job because she and A.A.W. were living together in
housing he had provided. Now she had a new challenge, finding
and financing housing. There is no evidence that the Division
provided any assistance on that front.
The paternal and maternal grandmothers — who, respectively,
were caring for Andy, Ann, and Tyler — participated in the
August 3 case management conference. Both were sworn before
addressing the court. A.A.W.'s mother asked for assistance with
promptly obtaining an appointment for Andy to see a specialist
because he was "slightly autistic." The Division had an
appointment scheduled for October, but A.A.W.'s mother felt Andy
needed help sooner. Because H.D.C. and A.A.W. had not heard
about Andy's autism until that conference, the judge directed
the Division to keep them informed. Although the supervisors'
11 A-3788-15T4
reports on visitation described Andy's uncontrolled behavior,
there is no evidence that H.D.C. or A.A.W. ever received
information on parenting techniques appropriate for such a
special need.
The maternal grandmother reported that Tyler was doing well
in Georgia and would start school on August 6. She told the
judge she "would like [Tara] with [her] also,"8 explained that
Tara previously had been with her for five months and had
friends and teachers she liked in Georgia and she regretted
having sent Tara back to New Jersey.
Countering the Division's contention the she did not have
enough space to accommodate Tara and Tyler, H.D.C.'s mother said
she did not want Tara and Tyler separated and was confident she
could find a larger dwelling. The judge directed the Division
to follow-up. Although H.D.C.'s mother moved to a three-bedroom
house to accommodate Tara, the Division was still awaiting an
interstate-inspection of that home when trial commenced on March
11, 2016.
In December 2015, three months before trial commenced, Dr.
DeNigris completed the bonding evaluations. Dr. DeNigris
8
At trial, the Division's adoption caseworker testified that
Tara's maternal grandmother first expressed her interest in
having Tara live with her in September 2015, but the transcript
of August 3 eliminates any uncertainty about the date.
12 A-3788-15T4
defines bonding as "the affectionate attachment between a child
and his or her caregivers that serves to join them emotionally
and that endures over space and time." In his opinion, bonding
is significant because it provides children's "template for
future relationships," gives them a "sense of basic trust," and
helps them develop favorable social emotions, cope with stress
and reach their full potential.
Dr. DeNigris evaluated the bond between Tara and H.D.C. on
September 10, 2015. His opinion on bonding was based on a
forty-five to sixty minute observation of H.D.C. and A.A.W. with
all four of H.D.C.'s children. At that time, Tyler was
thirteen, Tara was ten, Andy was three and Ann was two.
At trial, Dr. DeNigris explained the duration of
observation period was standard and, in his opinion, adequate to
give him an accurate picture of the relationships regardless of
the number of participants. The number of children involved did
not make it "more difficult to observe the nature of the
relationship" because H.D.C. and A.A.W. intended to care for all
four children. In his report, however, Dr. DeNigris had
recognized that H.D.C. and A.A.W. planned to separate if the
Division deemed one of them unfit to parent, and, by the time of
trial, H.D.C. was planning to parent alone.
13 A-3788-15T4
Dr. DeNigris's written report on his observations during
the bonding evaluation can be summarized as follows. On
entering the room, Tara drew on a whiteboard, and Tyler sat by
himself. H.D.C. and A.A.W. "immediately sat on the floor" with
Andy and Ann. H.D.C. and Ann played with dolls. Showing her
mother a doll, Ann said "Mommy, Look!" At that point, H.D.C.
asked Tara if she wanted to join in, and Tara said "in a
minute."
Tyler played with another toy on his own. H.D.C. told
Tyler he always had to find something "weird" to play with, and
he explained that it was "science." Ann said she was scared,
and H.D.C. asked why. Ann did not explain, but said "Thank you,
Mommy." While A.A.W. continued to focus on his son, Andy,
Tyler, Tara, and H.D.C. sang a song to Ann. Andy then called,
"Mommy look" and emptied a container of toys.
Dr. DeNigris did not observe any negative interaction
between H.D.C. and Tara, but he reported comments H.D.C. made to
Tyler that, in his opinion, were "derogatory" and "can only
serve to harm the parent-child relationship." He noted,
however, that when Tyler called Tara "ugly," H.D.C. responded by
saying, "No. None of my kids is ugly. I'm gonna smack your
brother because he keeps throwing pieces." He further noted,
14 A-3788-15T4
that as H.D.C. put toys away she remarked, "There's too much
going on."
When Tara moved away from H.D.C. to look at other toys,
H.D.C. asked her to bring back a specific game, "Jenga," which
Tara did. Tara and Tyler then played "Jenga" together. Because
Andy said he was sleepy, H.D.C. put him on her lap and they
watched Tyler and Tara play "Jenga." At trial, Dr. DeNigris
acknowledged that H.D.C.'s having Tara return with the toy was a
positive sign.
Noting that when A.A.W. and H.D.C. left the room at his
request, the children "did not exhibit any overt distress" on
"anticipated or actual separation," Dr. DeNigris indicated that
the absence of distress demonstrated a weak bond. In contrast,
at trial Dr. DeNigris acknowledged that at Tara's age he would
"be more concerned if there was distress," because children of
her age "should generally be able to separate from the adults
. . . who [they are] with" and that lack of distress in children
of Tara's age on separation is not as relevant as it is with
younger children.
Based on his observations, Dr. DeNigris reported these
opinions: "(1) a healthy bond is not present between any of the
children and [A.A.W.]; (2) a healthy bond is not present between
[Tyler, Tara, Andy] and [H.D.C.]; and (3) a healthy bond is
15 A-3788-15T4
forming between [Ann] and [H.D.C.]." In reaching that opinion,
Dr. DeNigris observed that H.D.C. and A.A.W. focused their
attention on Andy and Ann, and they rarely gave attention to
Tyler and Tara, even though Tyler and Tara would "vie for their
birth mother's attention." Noting that the adults gave
"noticeably less" attention to Tyler and Tara, Dr. DeNigris
wrote, "This is consistent with the information contained in the
records" reviewed.9
Importantly, in Dr. DeNigris's opinion, H.D.C. could not
"serve as appropriate caretaker" for Tyler or Tara. The basis
for that opinion was that he did not observe a "healthy bond"
between the older children and their mother. He explained:
In fact, [H.D.C.] directed most of her
attention to [Andy and Ann], while paying
significantly less attention to [Tyler and
Tara]. This was a theme . . . noted in the
background records and was something that was
supposedly addressed with [H.D.C.] during
visitations. Yet, her actions toward [Tyler
and Tara] . . . remained unchanged."
At trial, H.D.C.'s attorney asked Dr. DeNigris if parents
in similar circumstances generally need to pay more attention to
9
As explained in note 7 supra, Dr. DeNigris did not review the
reports prepared by those who supervised the visitations. The
judge reviewed the supervisors' reports and cited those exhibits
in support of his determination that the visitation-reports
revealed a pattern of favoritism for the younger and inattention
to the older children.
16 A-3788-15T4
younger children. Dr. DeNigris responded: "I would expect that
a parent would be able to divide his or her attention
appropriately among the two, three, four, however many children
were in the room." He did not explain how, in his opinion, a
parent could have divided his or her attention more
"appropriately" in these circumstances.10 Nor did he identify a
standard accepted and applied by bonding experts to assess
appropriate division of attention among children of different
ages.
Dr. DeNigris's opinion on H.D.C.'s capacity to parent was
also informed by his psychological evaluation of H.D.C.
Acknowledging that H.D.C. "generally appeared to accept
responsibility for how her actions and inactions contributed to
her ongoing involvement with the Division, particularly by
acknowledging her noncompliance during the early stages," he
observed that she "seemed to minimize the problematic nature of
some of the issues and/or to project blame onto others,"
especially when discussing her substance abuse, Tyler and Tara's
absences from school and the deplorable condition of her home.
10
On October 8, 2015, when Dr. DeNigris evaluated the bond
between Tara and her paternal aunt and uncle, E.B. and H.Y.,
their thirteen-year-old daughter and twenty-year-old son, who
both resided in the home, were not present. Tara was the only
child there. Similarly, when Dr. DeNigris evaluated the bond
between Tara and her father, R.B., no other child was present.
17 A-3788-15T4
In his opinion, H.D.C. could not correct the problems that lead
to removal until she recognized them. If Dr. DeNigris
considered reports from other Division consultants indicating
that H.D.C. acknowledged responsibility for the children's
removal in formulating that opinion, he did not mention them.
Crediting H.D.C. for the progress she had made, Dr.
DeNigris opined that H.D.C. could become a "viable caretaker"
for Andy and Ann but not for Tara or Tyler. He distinguished
H.D.C.'s capacity to parent the older and younger children
primarily on the absence of a healthy bond between H.D.C. and
the older children. At trial, he stressed that H.D.C. could not
meet Tara's needs, "[e]specially in the presence of the other
children." In his opinion, H.D.C. would be overwhelmed.
Dr. DeNigris did not recommend H.D.C.'s immediate
reunification with Andy and Ann. In his opinion, reunification
should be delayed until H.D.C. had "individual psychotherapy"
geared to give her insight on issues she needed to address and
support to deal with "the added stress that [could] occur as
reunification nears."
In his report, Dr. DeNigris recommended permanency for Tara
with her brother Tyler and their maternal grandmother, because
those children had expressed interest in living with her and she
was willing to commit to providing them permanency. At trial,
18 A-3788-15T4
he said he also believed the sibling connection would be
beneficial for Tara.
Circumstances were quite different when trial commenced on
March 11, 2016. Things changed dramatically two days earlier,
on March 9. That is when R.B. tendered and the judge accepted
his voluntary surrender of parental rights to Tara but
conditioned his surrender on Tara's adoption by E.B. or H.Y. As
a consequence of R.B.'s identified surrender, Tara's permanent
placement with her grandmother recommended by Dr. DeNigris was
no longer a likely option.
Equally if not more significant, on March 9, the Division
sought and obtained the judge's approval to pursue reunification
of Andy and Ann with H.D.C., but only after three to six months
of providing H.D.C. the therapy Dr. DeNigris recommended in
December 2015.
The Division's attorney, representing developments
confirmed by the Division's adoption caseworker, explained the
dramatic change in course as follows: "The conditions and
circumstances leading to removal of the children are being
corrected and it may soon be safe to return [Andy and Ann] home
to [H.D.C.] in the foreseeable future because [H.D.C. completed]
the services that were previously recommended for her including
parenting skills and counseling." Elaborating, the attorney
19 A-3788-15T4
advised that H.D.C. had recently: submitted to a psychiatric
evaluation by Dr. Sostre, and the Division was awaiting the
doctor's report; been referred for counseling with Dr. Cox,
which had not commenced; obtained a job; and "moved in with a
family friend who agreed to the children residing there."
As to Tara, the Division explained that Dr. DeNigris had
recommended H.D.C.'s reunification with her younger, but not her
older, children. The judge approved the Division's new plan for
the younger children, and he dismissed Ann, Andy and their
father A.A.W. from the guardianship action.
Because of R.B.'s identified surrender and the plan for
reunifying H.D.C. with Andy and Ann, at trial, Dr. DeNigris was
required to address circumstances very different from those
existing at the time of his bonding evaluations. In his report,
Dr. DeNigris had not recommended Tara's placement with E.B. and
H.Y., who were now poised to adopt her pursuant to R.B.'s
voluntary surrender. To the contrary, despite his generally
positive impressions of Tara's interactions with her aunt and
uncle during their bonding evaluation, Dr. DeNigris was
concerned by disclosures Tara made when he spoke to her
privately after observing her with E.B. and H.Y. in October
2015, and again after observing her with her father R.B., in
December 2015.
20 A-3788-15T4
On both occasions, Dr. DeNigris asked Tara how she was
doing with E.B. and H.Y. In October, she said it was "Ok" and
denied feeling nervous, worried or upset with them, but she also
said she would be "nervous" if she were to remain with them
permanently. Nevertheless, admitting she did not know her aunt
and uncle when she moved to their home, Tara said it was
"better." In December, Tara painted a different picture. Tara
described E.B. as "mean at times" and noted she wanted E.B. to
be her "last choice" for permanency. Explaining that E.B. never
hit her, Tara said E.B. sometimes "yells and wants to hit me"
and she feels "scared" at times.
Although Dr. DeNigris reported that Tara was forming a bond
with her paternal aunt and uncle, he also said he was surprised
the bond was "not more fully developed given the length of time"
Tara had been living with them. Referring to Tara's December
disclosures about E.B., he posited that those "dynamics could be
preventing a healthy bond from fully forming." In Dr.
DeNigris's opinion as of the date of his report, "it was
unlikely" Tara would suffer severe and enduring harm if removed
from E.B. and H.Y.
At trial, Dr. DeNigris acknowledged that if the dynamics
Tara mentioned in December did not change, it could interfere
with the development of a fuller bond between E.B. and Tara in
21 A-3788-15T4
the future. Nevertheless, he believed E.B. and H.Y. could
mitigate the harm Tara would endure if her bond with H.D.C. were
severed, because they had been providing for her needs since May
2014.
Neither E.B. nor H.Y. testified at trial. Apart from
information Tara provided when the judge took her testimony on
the last day of trial, the only evidence about the state of
Tara's relationship with E.B. at the time of trial was provided
by Ms. Brown, the Division's adoption caseworker. According to
Ms. Brown, she went to E.B.'s home regularly and asked Tara how
things were going; Tara always confirmed things were fine.
Brown discussed E.B. with Tara, and Tara had never said she was
mean. Ms. Brown described E.B. as being a "stern" and "firm
caregiver because she wants what's best."
Ms. Brown explained that the Division sought Tara's
adoption by E.B. and H.Y. rather than placement with her
maternal grandmother, as Dr. DeNigris recommended in his report,
because it was a "more permanent plan" and Tara was doing well
with E.B. and H.Y., both at their home and in her school. She
explained the Division's preference for adoption by E.B. over
placement with Tara's maternal grandmother, because it would
devastate Tara if her grandmother accepted and returned her, as
she had done in the past.
22 A-3788-15T4
Adjusting his recommendation for placement of Tara with her
brother Tyler and her maternal grandmother, at trial, Dr.
DeNigris identified two benefits Tara would reap if she remained
with her aunt and uncle — one less change and adjustment period
and an opportunity for permanency. Dr. DeNigris defined
permanency as the "need for security, stability, attachment and
trust" and he explained it would give Tara a "forever family
where she knows she would remain permanently, that she would not
be moved again." In his opinion, permanency would "help address
any feelings of confusion, any anxiety that [Tara] has, any
sadness or self-blame, and low self-esteem." Dr. DeNigris
explained that permanency is very important because "[w]ithout
it, [children] live in that constant state of uncertainty where
they can be moved at any time. Multiple moves, multiple
adjustments [with] grief and loss at each stage."
In Dr. DeNigris's opinion, permanency was more important
for a child of Tara's age than for Andy and Ann, because the
need for permanency is greater for children "old enough to
understand things on a different level . . . and that level of
understanding could increase their questioning . . . and . . .
feelings of . . . low self-esteem or anxiety, depression." Dr.
DeNigris further opined that adoption was preferable to foster
care, because adopted children, unlike children in foster homes,
23 A-3788-15T4
do not live in a state of uncertainty and, consequently, have
less anxiety, sadness and low self-esteem than foster children.
His explanations referred to children in general, not to
anything in particular about H.D.C.'s children, but he did not
explain the basis for the generality.
Noting that Tara flip-flopped in stating her preference for
permanency, Dr. DeNigris attributed her changing preferences to
confusion related to the delay in permanency and to her feeling
torn about selecting a preferred caregiver from the several
adults in her life. Apart from that confusion, Dr. DeNigris,
who had not done a psychological evaluation of Tara, did not
indicate any problems Tara had with self-esteem, anxiety or
depression.
Dr. DeNigris stressed that he would not support
reunification of Tara and her mother, even if adoption were not
feasible. In his opinion, if Tara were reunified with H.D.C.
and that reunification failed, it would exacerbate feelings of
anxiety, depression, low self-esteem, guilt and self-blame
flowing from failed placements and leave her questioning whether
she was contributing to those multiple placements.
Dr. DeNigris further opined that Tara would be at risk of
"abuse or neglect" if reunified with H.D.C. He based that
opinion on "the history of the case, the fact that the issues
24 A-3788-15T4
that contributed to . . . [] her removal have not been
remedied"; and observations from the bonding evaluation
where . . . [H.D.C.'s] attention was focused almost exclusively
on the two younger children" at Tara's expense.11 In his
opinion, whatever the placement, H.D.C. was not fit to parent
Tara, and would be overwhelmed by caring for Andy, Ann, and
Tara.
H.D.C. testified on her own behalf. She acknowledged that
she had no relationship with Tara's father R.B. and did not have
a great relationship with his sister, E.B. She did not agree
with the Division's plan for Tara's adoption by E.B. and H.Y.,
because Tara did not like it with them and because H.D.C. felt
it would be best for Tara if she were with her mother and
siblings.
Tara was the last witness at trial, and Dr. DeNigris
rendered his opinions without the benefit of her testimony or
hypotheticals based upon it. The judge interviewed Tara on the
record but not in the physical presence of H.D.C. or the
attorneys, who listened from a different room. During that
11
In his final decision, the judge interpreted Dr. DeNigris's
opinion on risk of abuse or neglect as an opinion on risk of
physical harm. Dr. DeNigris did not say that, and, as
previously noted, there is no evidence that Tara sustained
physical harm under H.D.C.'s care.
25 A-3788-15T4
interview, the judge posed questions developed beforehand with
input from the attorneys. Before posing any question, the judge
ascertained that Tara understood her obligation to tell the
truth.
Tara told the judge she liked living with E.B., her uncle
and her twenty- and thirteen-year old cousins. She also said
she had enjoyed spending summers in Georgia with her grandmother
in the past and wanted to do that again; when they were
together, she and her grandmother planted flowers and baked
things. Tara also told the judge she felt comfortable with E.B.
and said she cooked things with E.B. sometimes.
Tara's wishes for the future were to work with her brother
Tyler in a bakery and participate in gymnastics and ice-skating.
She also told the judge she spoke to her brother almost every
week.
When asked if others were trying to influence her answers,
Tara said she was not sure. She said E.B. had spoken to her
about the interview. Tara also admitted being concerned about
her answers hurting someone's feelings. She told the judge she
would be sad if she did not live with Tyler, but she also said
she would be sad if she did not live with her aunt, her uncle,
her cousins, her mom, or Andy and Ann. Tara's response deviated
only when she was asked about being sad if she did not live with
26 A-3788-15T4
her father. In R.B.'s case she replied, "I don't know about
that." As the judge noted in his final decision, Tara did not
express any preference about her living arrangement.
Immediately before the judge delivered his oral opinion
terminating H.D.C.'s parental relationship with Tara, the judge
approved another change in the Division's plan for Tara's
siblings. Specifically, the judge gave the Division approval to
forego termination of H.D.C.'s parental rights to Tyler and
provide permanency for him with his maternal grandmother
pursuant to the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-
1 to -7 (KLG).
Like the Division's plan to reunify Andy and Ann with
H.D.C. after affording H.D.C. three to six months of counseling,
the Division's new plan for Tyler could not be implemented for
several months. That is so because Tyler had been with his
grandmother for about nine consecutive months on March 9 when
the judge approved the KLG plan, but his maternal grandmother
could not even file her petition for guardianship under the Act
until Tyler had been living with her for twelve consecutive
months. N.J.S.A. 3B:12A-5(b)(10).
As a consequence of the Division's court-approved plans for
her siblings and R.B.'s identified surrender of his parental
rights to Tara, Tara was the only one of H.D.C.'s children whose
27 A-3788-15T4
mother-child relationship was at stake when the judge delivered
his decision terminating her parental rights to Tara.
The judge addressed Tara's unique position among H.D.C.'s
children immediately after he delivered his oral decision
terminating H.D.C.'s parental rights. He did not address it in
deciding whether the termination of H.D.C. was in Tara's best
interest given this circumstance.
The judge raised the issue of Tara's unique position
himself, after he delivered his decision and when H.D.C.'s
attorney requested continuation of visitation pending appeal.
The judge ordered one visit per month, and, addressing that
visitation, the judge directed: "[T]here needs to be no talking
or exchange between the mother and [Tara] about the paternal
relatives [or] about where her siblings are going . . . ."12 The
judge noted the potential for Tara to "feel that it's because of
her [that] she's not going home and yet her younger siblings are
going home." The judge explained that Tara would likely think
"the only difference between the siblings and her[,] is her. In
12
The judge's concern echoed one expressed by Tara's law
guardian during a colloquy on questions the parties proposed the
judge address while interviewing Tara in camera. Referring to
one question the Law Guardian exclaimed, "[W]hy on earth would
you tell a little girl that your siblings will be going home to
mommy but you can't. I mean that's horrible. I think that's
awful."
28 A-3788-15T4
other words, that it's her fault that the younger siblings are
going home." The judge elaborated:
[Tara] know[s] her mother loves her, she
know[s] her mother wants her and she could
really feel responsible for herself not going
home had she done something different. And
so any singling [sic] or comments about the
younger siblings going home could invoke
inadvertent or otherwise those feelings in
[Tara].
To diminish the risk of this potential harm to Tara, the
judge directed the Division's attorney to have Dr. Cox (who
would be providing H.D.C. the therapy pending reunification with
Andy and Ann recommended by Dr. DeNigris), and the Division's
caseworker (who would be arranging H.D.C.'s monthly visitation
with Tara and Tyler's kinship legal guardianship), to instruct
H.D.C. on proper responses to the difficult questions Tara was
likely to have.
II.
A parent's right to a relationship with his or child may be
terminated only if the State proves each of the four prongs of
the statutorily defined best interest test by clear and
convincing evidence. N.J. Div. of Youth & Family Servs. v.
E.P., 196 N.J. 88, 103 (2008). The Division must establish
that:
29 A-3788-15T4
(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.
. . . ;
(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;
(4) Termination of parental rights will not
do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
The four prongs "are not discrete and separate; they
overlap to offer a full picture of the child's best interests."
N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 554
(2014). Ordinarily, the court must decide "whether the parents
can raise their children without causing them further harm" and
the evidence "focus[es] on past abuse and neglect and on the
likelihood of it continuing"; the "inquiry is not whether the
biological parents are fit but whether they can cease causing
their child harm." In re Guardianship of J.C., 129 N.J. 1, 10
(1992). "'The considerations involved are extremely fact
sensitive and require particularized evidence that address[es]
30 A-3788-15T4
the specific circumstance in the given case.'" R.G., supra, 217
N.J. at 554 (quoting N.J. Div. of Youth & Family Servs. v. M.M.,
189 N.J. 261, 280 (2007) (citations and internal quotation marks
omitted)).
In his oral decision, the trial judge addressed the
evidence pertinent to each prong of the best interest test and
concluded that the Division met its burden of proof. Where, as
here, the judge had the opportunity to assess credibility and
the special expertise in matters of child welfare attributed to
judges of the Family Part, reviewing courts generally must defer
to judge's factual findings supported by the record. E.P.,
supra, 196 N.J. at 104; M.M., supra, 189 N.J. at 293. "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., supra, 196 N.J. at 104.
This was a difficult case made more difficult by the
dramatic eleventh hour changes in the permanency plans for Tara
and her three half-siblings. Having recognized the potential
for Tara to endure unique harm as the only one of H.D.C.'s
children to have a severed mother-child relationship, the judge
should have considered the specific circumstance of this case in
addressing Tara's best interest. R.G., supra, 217 N.J. at 554.
31 A-3788-15T4
The only expert testimony presented did not address that
question. Indeed, the expert could not have expressed an
opinion on that subject because Tara was not in this unique
position until the trial was over and the judge authorized the
Division to pursue KLG for Tyler.
As the Supreme Court has instructed, in termination cases
"[a] court must assure a complete and balanced presentation of
all relevant and material evidence sufficient to enable it to
make a sound determination consistent with the child's best
interests." J.C., supra, 129 N.J. at 22; see generally id. at
19-24 (discussing the appropriate use of expert opinions on
bonding and differing schools of thought on its importance in
the context of case where a parent's delay allowed the formation
of a bond with a foster parent). To that end, a judge "should
not hesitate to call on independent experts . . . ." Id. at 22.
We recognize the judge was dealing with the tension between
securing permanency promptly and developing an adequate record.
There is no question that "[a] child's need for permanency is an
important consideration" under the best interest test. M.M.,
supra, 189 N.J. at 281. But the case-specific circumstances in
this case include: a pending report on a recent psychiatric
evaluation of H.D.C.; counseling for H.D.C. for three to six
months; and a three-month waiting period before Tyler's maternal
32 A-3788-15T4
grandmother could file a petition for his KLG. In these
circumstances, the judge could and should have, at a minimum,
delayed issuance of his decision until the psychiatrist
transmitted the report.
Moreover, as previously noted, Dr. DeNigris had
reservations about Tara's bond with E.B. and provided only a
conclusory explanation for his opinion that E.B. could mitigate
the harm Tara would endure. Similarly, Dr. DeNigris had not
explained the basis for his opinion that H.D.C.'s division of
her attention among her children was not appropriate or how that
opinion supported his conclusion that H.D.C. would be
overwhelmed if she were caring for Andy, Ann, and Tara.
Unsupported and unexplained expert opinion has no value. J.C.,
supra, 129 N.J. at 23 (noting that "[t]he main point in weighing
expert evidence is the fit between the expert opinion based on
scientific theory and professional experience and the facts of
the case"); id. at 22 (noting that "[a] particular theory
suffices if it has substantial acceptance within the community
of experts").
In addressing the first, second and fourth prongs of the
best interest test, the judge relied in large part, albeit not
exclusively, on Dr. DeNigris's opinions. The importance of Dr.
DeNigris's opinion to the judge's decision cannot be overstated.
33 A-3788-15T4
Throughout his decision, the judge stressed that Dr. DeNigris's
opinion, which he found credible, unimpeached and unrebutted,
was the only expert opinion before the court. Indeed, Dr.
DeNigris's conclusion that, with a psychiatric examination and
additional therapy, H.D.C. could parent her younger children but
not Tara or Tyler in the reasonably foreseeable future was the
cornerstone for the judge's decision. Moreover, the judge
recognized a risk of harm to Tara — her unique position among
her siblings — that the expert had not addressed and the judge
deemed to be sufficiently significant and complex to require an
expert's advice on formulating appropriate responses to Tara's
likely questions.
For all of the foregoing reasons, we reverse the judgment
and remand for reconsideration of Tara's best interest in light
of the potential harm from her unique position among her
siblings. In reassessing Tara's best interest, the judge should
also consider Dr. Sostre's report, H.D.C.'s progress or lack
thereof in counseling and such updated or additional expert
evidence the judge requires or permits. To the extent the judge
relied on H.D.C.'s failure to secure housing in evaluating
Tara's best interest, we also direct judge to consider whether
the Division provided reasonable assistance to H.D.C. when she
34 A-3788-15T4
and A.A.W. announced their intention to separate in the event
that one but not the other were deemed ready to parent.
III.
H.D.C. also claims entitlement to reversal based on the law
guardian's failure to advocate Tara's interests and wishes as
required by N.J.S.A. 9:6-8.23(a). We have considered the
arguments offered on that point in light of the record and
conclude they have insufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded for further proceedings in conformity
with this opinion.
35 A-3788-15T4