NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,Plaintiff–Respondent, v. J.H. and A.H., Defendants–Appellants. IN RE: THE GUARDIANSHIP OF B.H.,
In these consolidated appeals, defendants J.H. (Father) and A.H. (Mother) challenge a judgment entered by the Family Part, terminating their parental rights over their second son, B.H. We affirm.
Mother gave birth to B.H. on April 15, 2012. On April 19, the Division conducted an emergency removal of B.H. after receiving a referral based on the parents' “history of significant child abuse.” Specifically, in a trial that concluded less than a year earlier, the Family Part found Mother and Father had abused their first child, A.J., and terminated their parental rights over A.J. Because the parents' abuse of A.J. is central to this matter, we summarize the A.J. case.
A.J. was born on August 29, 2008. When A.J. was five-months old, Mother and Father took him to the Robert Wood Johnson University Hospital because he had a fever, was lethargic, and was not eating or gaining weight. A paraspinal mass was discovered on the base of A.J.'s spine, and x-rays revealed that A.J. had sustained fourteen fractures throughout his body. Mother and Father denied any wrongdoing, but were unable to explain A.J.'s injuries.
A.J. was transferred to the Children's Hospital of Philadelphia (CHOP). The physicians at CHOP ruled out a number of medical conditions that could have caused the fractures, and determined that the paraspinal mass was a spinal compression injury resulting from being “slammed down” on a hard surface while in a sitting position. A.J. was also found to have two dime-sized burns in his throat from drinking over-heated formula. CHOP reported the injuries to the Division.
The Division conducted an investigation, and substantiated the allegations of physical abuse. The Division took temporary custody of A.J. under Title Nine, N.J.S.A. 9:6–8.21 to –8.73. At the Title Nine fact-finding hearing, a family judge found by a preponderance of the evidence that Mother and Father abused or neglected A.J., and directed the parties to consider alternatives to termination of parental rights. Mother and Father indicated that they would consider only reunification. The Division filed a guardianship complaint under Title Thirty, N.J.S.A. 30:4C–11 to –15.4.
The guardianship trial commenced before Judge William Anklowitz on May 4, 2011. One of the witnesses, Mother's paternal aunt, testified to the following. There were several incidents of domestic violence by Father against Mother, which Mother denied. There was no history of bone disease in the family and no complications with A.J.'s birth that would explain his injuries. Mother had asked her to lie and say that A.J. had rickets in order to explain his injuries. While A.J. was a patient at CHOP, Father pulled on A.J.'s legs while A.J. lie screaming, and Mother looked away. When the burns in the back of A.J.'s throat were diagnosed, Mother turned to Father and said “I told you not to feed him hot formula from the microwave.” The court credited the paternal aunt's testimony.
The judge made the following findings by clear and convincing evidence. He agreed with the Division's experts that there was no medical explanation for A.J.'s injuries, and that the parents “broke A.J.'s bones.” The parents' “failure to provide an explanation of all those fractured bones is evidence of consciousness of guilt.” A.J. had suffered no new broken bones in the twenty-three months between A.J.'s removal from his parents and the guardianship trial, which supported the finding that the parents had inflicted those injuries. Father, by moving A.J.'s legs while A.J. lie screaming, was “inhumanely torturing the baby,” and that Mother “let it happen.” The parents “are both equally responsible for the physical harm,” “[t]hey are each responsible for their own psychological unfitness,” and their “defense mechanisms ․ prevent them from reckoning with their faults.” The court concluded that, if A.J. remained in the parents' custody, “he would remain at risk of a serious bodily injury or death.”
The judge entered an order terminating the parents' rights over A.J. We affirmed, N.J. Div. of Youth & Family Servs. v. J.H., Nos. A–2949–10, A–2950–10, A–5420–10, A–5421–10 (App.Div. January 11, 2013), and the Supreme Court denied certification, N.J. Div. of Youth & Family Servs. v. J.H., 213 N.J. 536 (2013).
After the emergency removal of the newborn B.H., the Division filed a verified complaint and order to show cause under Title Nine and Title Thirty, asserting that B.H. was at a substantial risk of abuse because of the parents' abuse of A.J. Judge Anklowitz, the same judge who heard the A.J. trial less than a year before, granted an order to show cause on April 23, 2012, placing B.H. in the Division's custody, and setting the return date for motions for June 1, 2012.
On June 1, the court heard argument on motions. The court granted the Division's motion to be relieved of reasonable efforts, and approved the Division's adoption of a plan to terminate parental rights. The court scheduled the guardianship trial to commence on October 15, 2012, with the parties' agreement. The court on June 1 and July 13 ordered the Division to file a guardianship complaint, which it did on July 26, 2012. The court held the guardianship trial on October 15 through 19, 2012.
At trial, Dr. Barry Katz and Dr. Maureen Santina testified without objection as expert psychologists for the Division and Law Guardian, respectively. Both had previously examined Mother and Father in the A.J. proceedings. Dr. Katz testified that he found, to a reasonable degree of psychological certainty, that neither Mother nor Father were fit to parent B.H. for the foreseeable future. With regard to Father, Dr. Katz found “there has been no substantive change with regard to the risk factors and dynamics that have been previously documented” in the A.J. termination proceedings. He found the parents' consistent denial of responsibility for A.J.'s injuries was “very significant” as they were “not aware of what the problem is,” and therefore “the likelihood of therapeutic change [was] very minimal, almost non-existent.” He opined that this “related directly to risk of harm or neglect to a child.”
Dr. Katz diagnosed both parents with “compulsive personality disorder,” which is characterized by a rigidity in one's “thinking,” “defense mechanisms,” and “approach to problems.” As to Father, Dr. Katz opined that Father “continues to not have benefit[ted] sufficiently from the past and recent services” and he could recommend no services that would be effective. Because there had been “no substantive change with regard to the risk factors and dynamics” that resulted in the abuse and neglect of A.J., he concluded that returning B.H. to Father presented an “unacceptable level of risk of emotional and physical abuse and neglect.”
Dr. Katz found that Mother is and will continue to be unfit to parent for the foreseeable future due to her “pattern of excessive emotionality,” and particularly her pervasive pattern of contradiction, denial, and minimization of the prior incidents of domestic violence and the abuse of A.J. He noted Mother's denial of Father's aggressiveness was contradicted by her prior admissions “that she was distressed over aggressive behaviors displayed by her husband toward her and the child.”
Like Dr. Katz, Dr. Santina also found to a reasonable degree of psychological certainty that neither parent was or could be fit because of their continued denial of responsibility for A.J.'s abuse. Dr. Santina testified that she found both parents were at an elevated risk of child abuse for several reasons. She diagnosed Mother with a personality disorder characterized by dependent, narcissistic and histrionic features. She opined that Mother was “unwilling to look at her own personal issues in a realistic way,” engaged in “reckless actions” and exhibited “poor judgment.” She found no “meaningful changes” in Mother's condition.
Dr. Santina diagnosed Father with a personality disorder characterized by schizotypal, narcissistic, antisocial and borderline features. She was concerned that Father “tends to deny or avoid emotional issues” and “psychological problems rather than acknowledging or addressing them.” She found that Father had “rigid, intolerant relational attitudes” and had not engaged in any meaningful counseling, and that “it is unlikely that he has made substantial improvements behaviorally or emotionally.”
Father presented no evidence. Mother testified and called several witnesses, including Dr. Andrew Brown, her expert psychologist, who had not been involved during the A.J. matter. In contrast to the other experts, Dr. Brown found Mother did not suffer from a psychological disorder or “significant emotional behavioral issues.” Dr. Brown found Mother was “a good [family] historian,” even though Mother testified that she did not reveal to Dr. Brown the domestic violence found by the A.J. court. Dr. Brown reviewed the A.J. court's opinion after his evaluation of Mother, but found Mother's refusal to accept the A.J. court's findings that the parents had caused A.J.'s injuries was “not necessarily” indicative of a pattern of denial. He dismissed the A.J. court's findings of domestic violence “because people change over time.”
Dr. Brown diagnosed Mother with an “adjustment disorder and depressed mood,” for which he recommended she receive counseling. He opined the diagnosis did not render Mother unfit to parent. He acknowledged Mother has negative personality “traits,” but said those traits do not “rise to the level of a [personality] disorder.” He asserted Dr. Santina's diagnosis of Mother was “illogical” because one could not be both narcissistic and histrionic.
On October 26, 2012, Judge Anklowitz issued a thorough written opinion. The judge credited Dr. Katz and Dr. Santina, and specifically disbelieved the opinions and testimony of Dr. Brown. The court found the Division met its burden by clear and convincing evidence. The court entered an order terminating the parents' rights as to B.H., and dismissing the abuse and neglect action. Mother and Father appeal the court's orders dated April 23, June 1, July 13, and October 23, 2012.
“A parent's right to enjoy a relationship with his or her child is constitutionally protected.” In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, this protection “is tempered by the State's parens patriae responsibility to protect the welfare of children.” Id. at 347; see N.J.S.A. 30:4C–1(a).
Under Title Thirty, the Division must prove by clear and convincing evidence that termination of parental rights is in the best interests of the child. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012); see N.J.S.A. 30:4C–15(c). The Division must show that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
“Importantly, those four prongs are not ‘discrete and separate,’ but ‘relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.’ ” N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606–07 (2007).
In reviewing a family court's decision to terminate parental rights, we must hew to our “limited” standard of review. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Our task is to determine whether the decision “is supported by substantial and ‘credible evidence on the record.’ ” F.M., supra, 211 N.J. at 448. “We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has 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).
Further, “[b]ecause of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding.” N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J.Super. 453, 463 (App.Div.2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Thus, “[w]e will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice.” F.M., supra, 211 N.J. at 448 (quotation marks omitted).
Mother and Father argue first that there was insufficient evidence to clearly and convincingly establish each of the four prongs under N.J.S.A. 30:4C–15.1(a).
The first two prongs, N.J.S.A. 30:4C–15.1(a)(1) and (2), are related “components of the harm requirement.” In re Guardianship of DMH, 161 N.J. 365, 379 (1999). As such, “evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child.” Ibid. Because the facts regarding the harm prongs are factually intertwined, we address both prongs together. E.P., supra, 196 N.J. at 104.
Under the harm prongs, the court may consider not only past harm, but also the risk of future harm. DMH, supra, 161 N.J. at 383. The Division need not “wait ‘until a child is actually irreparably impaired by parental inattention or neglect.’ ” F.M., supra, 211 N.J. at 449 (quoting DMH, supra, 161 N.J. at 383). Where a child has never been in a parent's care, the court need not “wait until [the child] had been injured to decide the issue.” N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 n.14 (1986).
Here, B.H. was removed from his parents when he was four days old. Dr. Katz and Dr. Santina testified that there was a real risk that B.H. would be abused and neglected by Father and Mother because of the uncorrected psychological and relationship issues that had led them to abuse A.J. The court credited both of those experts, and found the parents committed child abuse on their first child and are “at high risk for repeating their behaviors on the second child.”
Mother and Father contend the court improperly presumed that they are unfit because their rights to A.J. were terminated. “ ‘[P]resumptions of parental unfitness may not be used in proceedings challenging parental rights [.]’ ” G.L., supra, 191 N.J. at 606. Thus, “ ‘[t]he burden falls on the State to demonstrate by clear and convincing evidence that the [parents have] not cured the initial cause of harm and will continue to cause serious and lasting harm to the child.’ ” N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167–68 (2010) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).
Mother and Father acknowledge that, in this action, proof of the abuse or neglect of one child may be admissible evidence on the issue of the abuse or neglect of any other child under their care. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J.Super. 576, 610–11, 613 (App.Div.), certif. denied, 192 N.J. 68 (2007); J. & E. v. M. & F., 157 N.J.Super. 478, 493 (App.Div.) (“Evidence of parents' fitness or unfitness can be gleaned not only from their past treatment of the child in question but also from the quality of care given to other children in their custody.”), certif. denied, 77 N.J. 490 (1978).2 Indeed, the Division is required to bring an action under Title Thirty when a parent has been convicted of a crime against another child or when “the parent has committed a similarly serious act which resulted, or could have resulted, in the death or significant bodily injury to ․ another child of the parent.” N.J.S.A. 30:4C–15(f); see J. & E., supra, 157 N.J.Super. at 481, 492–93 (affirming the termination of parental rights over a child who was removed at birth where the parents were guilty of manslaughter and child abuse of their other two children). The findings made in the A.J. guardianship trial were properly considered by the judge in making his findings under prongs one and two in the B.H. termination proceedings.3
Mother and Father emphasize, however, that B.H. was unharmed when he was removed. They then argue that, under our decision in F.H., the abuse of A.J. could not have satisfied prong one with regards to B.H. in the absence of a consistent pattern of abuse or neglect. In F.H., we ruled:
In order to sustain a judgment terminating a defendant's parental rights with respect to children who have not been the direct recipient of abuse or neglect, the trial court must find, by clear and convincing evidence, that [the Division] has demonstrated that the parent's failure to adequately respond to and/or prevent the abuse endured by one child, exposes any similarly situated sibling to a high probability of being abused or neglected.
[F.H., supra, 389 N.J.Super. at 586, 625.]
In F.H., we found the Division failed to clearly and convincingly show a high probability that the parents would abuse or neglect two of their three children. Id. at 616, 618. The Division removed all three children after receiving reports that the middle child, Harry, had sustained nine fractures of varying severity throughout his body. Id. at 612. Although Harry had a medical condition linked to bone malformation, physicians reported that the condition did not explain the fractures. Id. at 587, 589.
Based on the expert physician's testimony that Harry's injuries were not caused or facilitated by a medical condition, the parents' lack of a plausible explanation for the injuries, and the fact that Harry remained injury-free after his removal, we found the “strong circumstantial evidence” sufficiently supported the family court's finding that the parents' rights to Harry should be terminated. Id. at 585, 611–12. We ruled differently with regard to the other children, for whom there was no evidence of harm from either parent. Id. at 613–14. We stated that “the Supreme Court's admonition in DMH that ‘courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect,’ must be understood, considered, and applied in the context of a clear record showing a pattern of parental inaction and neglect, amounting to unfitness.” Id. at 615. Finding no such “consistent pattern,” we ruled there were insufficient “findings to warrant the termination” of the parents' rights as to the eldest child and youngest child, and vacated the termination order as to those two children. Id. at 615–16.4
Father argues that this case is indistinguishable from F.H. However, this case differs from F.H. in three crucial respects.
First, the direct and circumstantial evidence in this case shows more troubling harm than did the circumstantial evidence presented in F.H. There, we found “the trial court's factual findings did not adequately articulate” a causal link between Harry's fractures and any act or omission by his parents. Id. at 585–86. We believed “the court imputed liability to the parents because the injuries to [Harry] occurred on their watch.” Id. at 612. We ultimately found no pattern “based, in part, on the fact that the safety and health of Harry were jeopardized by a particular and discrete form of neglect, i.e., failing to protect him from harm.” Id. at 616.
By contrast, this case involves parental abuse, not merely neglect. The A.J. court found Father had burned A.J.'s throat by giving him overheated formula. More importantly, the court found based on direct evidence that Father had “tortur[ed]” A.J. in the hospital by forcing him to move his broken legs, and that Mother knew about the abuse “but she looked the other away.” Furthermore, the medical evidence showed that A.J.'s fourteen fractures were the result of inflicted trauma. Indeed, the expert testimony showed and the trial court found that the mass at the base of A.J.'s spine was caused by being “slammed down” on a hard surface while in a sitting position. This medical evidence showed a pervasive and diverse pattern of abuse of A.J. sufficient to support the B.H. court's finding of danger of similar abuse to B.H. Cf. id. at 616–17 (finding no risk to the other siblings “[b]ecause the pattern of Harry's neglect was limited to the single form of repetitive injury rather than being more pervasive and diffuse”).
Second, any pattern in F.H. was rebutted because the parents had custody of the two other children before, during, and after Harry's injuries, but did not abuse or neglect either child. As the parents had the opportunity to abuse the eldest and youngest children but did not, there was insufficient basis to find that the parents posed a substantial risk of harm to those two children. By contrast, Mother and Father did not have a similar opportunity to abuse or neglect B.H. because A.J. was injured and removed before B.H. was born, and B.H. was removed only four days after he was born. Given that A.J.'s injuries were severe, that Mother and Father were found to have caused those injuries, and that Mother and Father refused to take responsibility for those injuries, it was reasonable to find that A.J.'s injuries were “a harbinger of what could befall [B.H.] if he [was] left, unsupervised, in his parents' custody.” See F.H., supra, 389 N.J.Super. at 617. “ ‘We cannot conceive that the Legislature intended to guarantee to parents at least one chance to kill or abuse each child.’ ” Id. at 616 (quoting J. & E., supra, 157 N.J.Super. at 493).
Third, in F.H. there were no other allegations of harm from the parents. Here, however, Mother and Father were also found to have harmed A.J. as a result of the parents' documented history of domestic violence, and their denial and minimization of that violence. Based on that denial, Dr. Katz deemed their parental fitness “bleak to dismal.” In the B.H. trial, Dr. Katz and Dr. Santina found that the parents continue to deny and minimize their history of domestic violence, and that this denial reinforces their parenting deficits. The court adopted those experts' findings, and found “that the risk factors found in previous evaluations [have] not been resolved and are on-going.” The facts here thus present a greater risk of future harm to B.H. than those presented in F.H.
Accordingly, unlike in F.H., the evidence clearly and convincingly demonstrated a consistent pattern of actual abuse of A.J. by Father with Mother's acquiescence, coupled with a history of domestic violence and continued denial. The pattern of abuse and neglect was unrebutted, unlike in F.H. Thus, reunification with Mother and Father would expose B.H. “to a high probability of being abused or neglected.” Id. at 586. This harm satisfies F.H. and N.J.S.A. 30:4C–15.1(a)(1).
We next consider whether “[t]he 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.” N.J.S.A. 30:4C–15.1(a)(2); N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J.Super. 451, 479 (App.Div.2012).
There was sufficient evidence in the record to support the trial court's finding that Mother and Father are unable or unwilling to eliminate the harm to B.H. Having severely abused A.J., Mother and Father refuse to acknowledge such abuse, let alone learn how to prevent it. The court agreed with the experts for the Division and the Law Guardian and found that the parents “are unwilling and unable to improve their behavioral and emotional problems because they still deny there is a problem.” The court properly found that, “[w]ithout any recognition of responsibility for A.J.'s injuries, no change could be expected to occur in their parenting.”
Mother and Father note that in F.H., we did not find the second prong was met regarding the other two children despite “the parents' steadfast refusal to acknowledge any responsibility for [Harry's] injuries.” F.H., supra, 389 N.J.Super. at 617–18. However, we stressed that “[n]either parent was directly accused of having caused Harry's injuries,” and that the parents had not harmed the other two children, despite their opportunity to do so. Ibid. Here, by contrast, the parents were found to have abused A.J., and giving B.H. to Mother and Father would expose him to the same unrebutted, uncorrected risk of abuse.
Mother contends that refusal to accept the blame for harm caused to a previous child is insufficient to establish harm to another child. Our Supreme Court has reversed the termination of a mother's parental rights where the mother “refused to condemn [the father] for the death” of their first child, but subsequently did not live with the father or allow the father to have unsupervised visitation with their second child. See G.L., supra, 191 N.J. at 608. Here, however, after Father's abuse of A.J., Mother continued to live with Father, had B.J. with him, and clearly has no intention of leaving what she terms her “honeymoon” existence with him. Mother therefore refuses to acknowledge “[t]he dangerous nature of the ․ home environment,” or to “fully appreciate the needs of [B.H.] or the risk created by [Father's] presence in the home.” See N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 283–84 (2007).
Father argues it was unfair to consider the parents' refusal to admit responsibility for A.J.'s injuries because the A.J. ruling was still on appeal. As the appeal confirmed, however, the A.J. ruling correctly found that the parents abused A.J. The parents' refusal to admit what had actually occurred was a proper consideration for the experts and the trial court.
Mother and Father have done nothing to remediate the unsafe environment that led to A.J.'s injuries, despite the extensive treatment provided during the A.J. litigation. After their rights to A.J. were terminated, Mother and Father claimed they had received crisis counseling to deal with their resulting depression, but declined to produce all of the records from this counseling despite being ordered to do so. Mother also attended a two-hour “Baby Basics” class and a breastfeeding class while she was pregnant with B.H. However, the court and the experts for the Division and Law Guardian properly found that these classes did not address either the psychological or relationship issues that make Mother and Father unfit to parent, especially in light of their persistent refusal to acknowledge responsibility for A.J.'s injuries or their history of domestic violence. The court correctly found that, “without acknowledgment of any wrongdoing, [Mother and Father] will not make any improvement with psychotherapy treatment,” and therefore are unwilling and unable to eliminate the harm to B.H.
Mother and Father note that there have been no reports of domestic violence since their rights to A.J. were terminated. The trial court found, however, that “the steadfast denials and minimizations by [the parents] indicated that any future problems would likely not be identified or reported.” Thus, it is unclear whether the absence of such reports means that no domestic violence has occurred, or that Mother has chosen not to report domestic violence any more, or that the absence of domestic violence is due to the absence of the pressures of parenting. Either way, the court properly identified the parents' unwillingness to address their history of domestic violence problems as a cause for concern under N.J.S.A. 30:4C–15.1(a)(2).
Additionally, Mother argues that the opinions offered by Dr. Katz and Dr. Santina were not sufficiently supported. To the contrary, their opinions were amply supported by the clinical interviews and psychometric testing, and were properly credited by the trial court.
Mother contends Dr. Katz improperly invalidated her Child Abuse Potential Inventory (CAPI) score, which showed she was not at an elevated risk for child abuse. Dr. Katz stated that Mother's CAPI results were suspect because she gave inconsistent responses to questions in an attempt to portray “herself in an unrealistically favorable light.” Mother argues her high score on the “inconsistency scale,” without a corresponding high score on the “random response scale,” was an incorrect basis to invalidate that test. This argument is meritless, as her own expert testified that both scales must be elevated only if the random response scale is the basis for invalidating the test.
Mother notes that, unlike in the A.J. proceedings, Dr. Santina found Mother had not “faked good, i.e., answered the questions to show herself in a favorable light,” in the Minnesota Multiphasic Personality Inventory testing. However, Mother's results on Dr. Santina's Millon Clinical Multiaxial Inventory were still “indicative of a ‘fake good’ profile.”
More importantly, neither of Mother's arguments undermine the common-sense conclusion of Dr. Santina or Dr. Katz that the parents' refusal to take responsibility for A.J.'s injuries preclude them from meaningfully addressing their abuse and neglect problems. The court was thus entitled to rely on the experts' opinions. See State v. Jenewicz, 193 N.J. 440, 466 (2008).
Mother also argues that the experts for the Division and Law Guardian in their reports relied on facts from the A.J. litigation that were not included in the A.J. court's opinion. However, experts are entitled to rely on even inadmissible evidence “[i]f of a type reasonably relied upon by experts in the particular field.” N.J.R.E. 703.
Under these circumstances, the parents' abuse and neglect of A.J., and refusal to accept responsibility, support the court's findings that the parents pose a substantial risk of harm to B.H., which they are unwilling and unable to mitigate. As a result, there is no reason to increase the harm by delaying B.H.'s permanent placement. Accordingly, the court correctly found the Division had satisfied N.J.S.A. 30:4C–15.1(a)(1) and (2).
Generally, the Division is required to make “reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside of the home.” N.J.S.A. 30:4C–15.1(a)(3); see also K.H.O., supra, 161 N.J. at 354. However, the Division “shall not be required to provide reasonable efforts to reunify the child with the parent if a court of competent jurisdiction has determined that ․ [t]he rights of the parent to another of the parent's children have been involuntarily terminated.” N.J.S.A. 30:4C–11.3; see N.J.S.A. 30:4C–15.1(d). When considering whether reasonable efforts are required, the family court must keep in mind that “the health and safety of the child and the child's need for permanency shall be of paramount concern.” N.J.S.A. 30:4C–11.3.
The court here properly relieved the Division of its obligation to make reasonable efforts to reunify B.H. with Mother and Father, both because of the termination of their rights to A.J., but also because it was unlikely that such services would enable the parents to protect the health and safety of B.H. and provide him with permanency. The court noted that the A.J. guardianship trial was delayed “for many months so that the parents would have the benefit of every recommended service that [the expert] could think of, to have every service that they asked for․ They've had that chance, and then some, if anything more than the law required[.]” The court also credited the finding by Dr. Katz and Dr. Santina that Mother and Father “would have to admit to doing something wrong before engaging in therapy to fix the problem,” and that their failure to accept responsibility for the abuse of A.J. meant that “therapy would not [be] useful.”
Nothing suggests that the Division could have provided effective services to Mother and Father, and indeed they identify no services that should have been provided. As the court found, the Division could not have offered services that have a “ ‘realistic potential to succeed.’ ” See N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J.Super. 245, 267 n.10 (App.Div.2002) (quoting N.J.A.C. 10:133–1.3).
Nevertheless, Mother incorrectly argues that the court, in relieving the Division of its duty to provide reasonable efforts, focused too narrowly on the prior termination, and therefore failed to consider the best interests of B.H. She cites N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J.Super. 525 (App.Div.2006). There, the question was whether the Division should be relieved of the obligation “to prevent placement of the child” under N.J.S.A. 30:4C–11.2. Under that provision, it is insufficient that parental rights to another child have been terminated; it also requires proof that “ ‘[e]fforts to prevent placement were not reasonable due to risk of harm to the child's health or safety.’ ” S.A., supra, 382 N.J.Super. at 536 (quoting N.J.S.A. 30:4C–11.2(b)). We therefore ruled that, “if rehabilitation has proven successful, the fact that the parent's rights to a first child have been terminated should not be utilized as a per se test to deprive the parent of [Division] services in connection with a later-born infant.” Id. at 537. Here, however, N.J.S.A. 30:4C–11.3 does not have N.J.S.A. 30:4C–11.2's second requirement. Further, no such rehabilitation occurred here.
Accordingly, the decision to relieve the Division of its obligation to provide reasonable efforts was not contrary to B.H.'s best interests, and the evidence satisfied N.J.S.A. 30:4C–15.1(a)(3).5
Finally, the Division must prove that “[t]ermination of parental rights will not do more harm than good” to the child. N.J.S.A. 30:4C–15.1(a)(4). This fourth prong acts “as a fail-safe against termination even where the remaining standards have been met.” G.L., supra, 191 N.J. at 609.
Mother and Father note that removal of a child is inherently harmful. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 264 (App.Div.2005). However, as set forth above, the parents posed an unmitigated and substantial risk of harm to B.H. The court reasoned if B.H. were returned to Mother and Father, “the nightmare that [he] would be left maimed for life, killed, or otherwise seriously harmed is all too likely of a certainty.” The court therefore found that “[t]ermination will do much more good than harm.”
Father argues that, without bonding evaluations, termination was premature. Where a child has had an opportunity to form a meaningful bond with both natural and foster parents, a bonding evaluation is necessary to determine whether “the child will suffer a greater harm from the termination of ties with [his] natural parents than from permanent disruption of [his] relationship with [his] foster parents.” I.S., supra, 202 N.J. at 181 (quotation marks omitted); see F.M., supra, 211 N.J. at 453.
Here, it is undisputed that bonding evaluations were not done before trial because B.H. was less than six months old, and thus too young to form a meaningful bond with a parental figure. This was thus one of the “few scenarios in which comparative evaluations would not be required.” N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 440 (App.Div.2009).
Accordingly, it was appropriate for the court to analyze prong four with reference to “the first and second elements of the best interests standard, which also focus on parental harm to the children.” DMH, supra, 161 N.J. at 384. As set forth above, reunification with Mother and Father poses a substantial risk of harm to B.H., which is unlikely to be mitigated in the near future. Thus, B.H.'s “interest will best be served by completely terminating [his unformed] relationship with” his parents. See E.P., supra, 196 N.J. at 108.
Further, the parents' inability or unwillingness to address their parental unfitness would improperly require B.H. to “languish indefinitely in foster care” in the hope that the parents would eventually recognize and then take steps to deal with “the conditions that resulted in an out-of-home placement.” N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J.Super. 212, 227 (App.Div.2013) (quoting N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J.Super. 201, 209 (App.Div.), certif. denied, 192 N.J. 293 (2007)). Accordingly, the court did not err in finding that the fourth prong was met.
On appeal, Mother and Father argue for the first time that the speed at which the guardianship proceedings were conducted violated their right to procedural due process.
However, Mother and Father point to no instance where they asked for more time that they did not receive. At the April 23, 2012 hearing, the Division announced it would file a motion to remove its obligation to make reasonable efforts to reunify B.H. with his parents. Mother indicated she had witnesses present and was ready to proceed to an immediate hearing. Counsel for Father requested that the parties have three weeks to exchange discovery in order to allow him to catch up on the facts, and that the Division's motion be resolved “two to three weeks after discovery.” The court required the Division to file its motion in one week, but gave the parents two weeks to file their motions. The court ordered the Division to produce its discovery within two weeks. The court then stated: “I think I could be very understanding of the idea that there's going to be quite a bit of discovery coming over. I'm going to give the defense ․ some extra time to be able to respond.” The court gave the parents four weeks before they had to file their response to the Division's motion on May 20. The court said, without objection from either parent, that it would resolve the Division's motion on June 1. The court informed the parties that “[i]n the event that the [Division's] motion is granted you should be prepared to go forward with a permanency hearing” on June 1, again without objection.
However, on June 1, Mother objected to holding the permanency hearing. On appeal, she contends that it was “egregious” for the court to hold the permanency hearing on the same day as the resolution of the Division's motion to be relieved of providing reasonable efforts. However, as the trial court noted, Title Nine and Title Thirty require the court to hold a permanency hearing within thirty days of the child's removal if the Division is relieved of the reasonable efforts requirement, provided the parents receive adequate notice at least fifteen days in advance of the hearing. N.J.S.A. 9:6–8.54(b)(2); N.J.S.A. 30:4C–61.2(a)(1), (b). Moreover, “[a] permanency plan for the child may be established at the same hearing at which the court determines that reasonable efforts are not required to reunify the child with the parent[.]” N.J.S.A. 30:4C–11.3. Indeed, “[a]ny hearing or proceeding scheduled before the court may serve as a permanency hearing, provided that notice of that fact is given to all parties in advance.” R. 5:12–4(h). Here, the parties had almost forty days' notice.
At the June 1 hearing, in denying Mother's motion for reconsideration of the April 23 order, the court gave Mother the opportunity to have Dr. Brown produce an updated evaluation after Dr. Brown received the A.J. opinion and Mother's previous psychological evaluations. The court gave the parties four and a half months to prepare for the guardianship trial, which he scheduled for October 15 to 19, 2012, with the approval of Mother and Father.
Mother and Father now complain that the guardianship trial occurred three months after the Division filed its guardianship complaint. That was due not to the action of the court but of the Division, which the court ordered on June 1 and again on July 13 to file a guardianship complaint, which the Division filed on July 26. The parents do not contend that the Division's delay in filing the long-anticipated complaint prejudiced them or in any way prevented them from preparing for the already-scheduled trial. In any event, commencing the guardianship trial nearly three months after the complaint was filed accords with the statutory requirement that “[a] final hearing for guardianship shall be held within three months from the date the petition is filed.” N.J.S.A. 30:4C–15.2. “Strict enforcement of this mandate ‘furthers the important [legislative] policy preference for the permanent placement of children.’ ” N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J.Super. 252, 265 (App.Div.2009) (quoting N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 558 (1994)), certif. denied, 201 N.J. 153 (2010).
Furthermore, the court scheduled a case management conference for July 13, 2012, to give the parties an opportunity to express any “problem[s] getting experts” for the scheduled trial. At that conference, Mother's counsel stated that she would have Dr. Brown's updated psychological evaluation by July 23, and that “[w]e are prepared to go forward” with the trial. The court then reiterated the October 15 trial date, again without any objection.
At the September 10 pretrial conference, the trial court reviewed and refined the pretrial and trial schedule, without objection. The court ordered a case management hearing for September 14, at which Father's counsel confirmed that he had obtained an expert report for Father, but would not submit it or have the expert testify “for various reasons.”
Neither parent requested more time at any of the five pre-trial hearings after the court's approval of the Division's permanency plan.6 The trial commenced as scheduled on October 15. Father held to his plan to offer no testimony, and Mother offered Dr. Brown and her other witnesses, without any claim that any evidence was precluded.
On appeal, Mother and Father fail to show error, let alone error “clearly capable of producing an unjust result.” R. 2:10–2. Father now contends that they should have had more time to benefit from services, but the Division had no obligation to provide services and the parents failed to show they were undergoing any meaningful services, let alone benefiting from them. Further, the court properly found that services could not be beneficial in light of their refusal to acknowledge their problems. The parents contend their attorneys needed more time to review the facts of the A.J. litigation, but they never asked for more time to do so, and neither parent identifies what their attorneys would have done differently.
Mother and Father point out that we have found that a guardianship trial conducted approximately six months after the child's birth was “unjustifiably rushed.” S.A., supra, 382 N.J.Super. at 538. Our decision there, however, depended on unusual facts not present here.
Unlike here, in S.A. there was no order relieving the Division of reasonable efforts to reunify the child with her mother, and the court's order relieving the Division of its obligation to prevent placement was improper. Id. at 530 n.5, 536–37. Thus, the Division wrongly made no efforts at reunification, and ignored the mother's attempts to contact it. Id. at 529–30. Moreover, although the Division removed the child while the mother was incarcerated, she was transferred to a halfway house within months, and she was expecting a relatively quick release. Id. at 535, 538.
Furthermore, the mother had finally acknowledged her drug addiction that led to her loss of parental rights to her first child, and had made “substantial and thus-far successful efforts to address” her substance abuse problem. Id. at 535. Accordingly, we found that “the speed with which [the Division] and the court proceeded was detrimental to [the mother's] rights, since it precluded contact between [her and her child], frustrated extended efforts at rehabilitation and discouraged any meaningful attempts to accomplish post-incarceration planning.” Id. at 538. We noted, however, that had the defendant's “term of imprisonment [been] significantly longer and her prospect for rehabilitation negligible, perhaps this speed could be justified.” Ibid.
Here, by contrast, the Division was properly relieved of the duty to make reasonable efforts at reunification because the court found no prospects for the parents' rehabilitation. Mother and Father refused to acknowledge their abuse problems that led to their loss of parental rights to A.J., and failed to make any real efforts to address those problems. Nonetheless, the Division provided the parents with supervised visitation, and they had ample time to make efforts at rehabilitation as in S.A., but failed to do so. There is no evidence that the scheduling of the guardianship proceedings deprived the parents of an opportunity to show that they could “cease causing their child harm.” See J.C., supra, 129 N.J. at 10; see also A.W., supra, 103 N.J. at 607. Thus, their reliance on our decision in S.A. is mistaken.
Mother and Father clearly “had notice and an opportunity to be heard — the very essence of due process.” F.M., supra, 211 N.J. at 444–45. Accordingly, we conclude that the parents' due process arguments are unavailing.
Mother contends that the trial court should have held an evidentiary hearing before issuing its June 1 orders. See N.J.S.A. 9:6–8.31. On April 23, when the Division sought an order to show cause, Mother's counsel argued the case should be immediately dismissed, and said Mother's neighbors were present and ready to testify that there had been no domestic violence problems since the A.J. decision. The court determined that the parties should have a chance to obtain and sort through the relevant discovery, and declined to hold an evidentiary hearing at that time. Mother's counsel agreed that she could present witnesses on a later date. The court then set the return date for June 1.
At the June 1 hearing, Mother moved for reconsideration of the April 23 order on the grounds that the court was required to conduct a fact-finding hearing before approving the Division's emergency removal of B.H. The court properly rejected this argument. The initial removal of B.H. was based on the findings of parental abuse at the A.J. guardianship trial, which were binding under collateral estoppel. Thus, as to A.J., the court properly found no “material fact in dispute.” R. 5:12–1(f). Moreover, Father's counsel asked for more time to obtain and review discovery. It was within the court's discretion to postpone presentation of witnesses until after all parties were ready. Ibid.
Mother next contends that remand is required because the court did not hold a fact-finding hearing prior to approving the Division's permanency plan at the June 1 hearing. Mother cites J.Y., supra, 352 N.J.Super. 245, but that case had nothing to do with permanency hearings. Rather, we held that the Family Part may not make a Title Nine finding of abuse and neglect and hold a dispositional hearing placing a child with a third party under N.J.S.A. 9:6–8.51 and –8.54 without first conducting a fact-finding hearing under N.J.S.A. 9:6–8.44 and –8.50. J.Y., supra, 352 N.J.Super. at 264–65, 268. That Title Nine requirement is inapplicable to this case because the court did not make a finding of abuse and neglect of B.H. under Title Nine. Instead, the court dismissed the Title Nine complaint, the Division filed a complaint under Title Thirty, and the court held a full guardianship trial. See N.J. Div. of Youth & Family Servs. v. I.S., supra, 214 N.J. 8, 14, cert. denied, _ U.S. 529, 134 S.Ct. 529, 187 L. Ed. 2D 380 (2013).7
As set forth above, at the June 1 hearing the court properly relieved the Division of its obligation to make reasonable efforts, and approved the Division's permanency plan to terminate the parents' rights. See N.J.S.A. 30:4C–11.3. At a permanency hearing, an evidentiary hearing is not mandated; rather the parties are entitled to be present and to submit “written information.” N.J.S.A. 30:4C–61.2(b), (c). The court's consideration of the parties' written submissions and oral arguments satisfied these requirements. The court properly allowed the Division to adopt a plan for termination of parental rights, finding it reasonable in light of the involuntary termination in the A.J. trial and because the Division was relieved of its obligation to make reasonable efforts at reunification. Mother and Father had the full opportunity to introduce evidence to oppose termination at the guardianship trial.
We therefore reject Mother's claim of procedural error.
Finally, Mother and Father now argue that the trial judge “tilted the playing field,” and was “predisposed” to finding in favor of the Division. They made no such claim below, however.8 We have examined the record, and find no basis for this contention.
They also argue that the speed with which the proceedings were conducted indicated the judge was “merely paying lip service to the rights of the parents to be heard.” To the contrary, the judge conducted this proceeding with care, deliberation, and concern for the parties' procedural and substantive rights.
2. FN2. This proposition is established by statute for Title Nine proceedings. N.J.S.A. 9:6–8.46(a) (permitting such evidence “[i]n any hearing under this act”); N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 114 (2011). Such evidence is also admissible in Title Thirty proceedings because a parent's ability to parent safely is an element under N.J.S.A. 30:4C–15.1(a). See N.J.R.E. 401, 404(c).
3. FN3. The findings regarding A.J. were binding under the doctrine of collateral estoppel. See R.D., supra, 207 N.J. at 114–15, 120–22 & n.12. Collateral estoppel applies “even if the final judgment in the prior action is pending on appeal.” Gregory Mktg. Corp. v. Wakefern Food Corp., 207 N.J.Super. 607, 621, 624 (Law Div.1985); see Bondi v. Citigroup, Inc., 423 N.J.Super. 337, 426 (App.Div.2011), certif. denied, 210 N.J. 478 (2012).
4. FN4. We also determined that a grandmother's physical discipline of the eldest child did not warrant termination of the parents' rights, particularly as the parents required the grandmother to leave the home, ending her contact with the children. Id. at 613–14.
5. FN5. The parents do not contest the judge's finding that the Division sufficiently considered alternatives such as kinship legal guardianship. See ibid.
6. FN6. At the October 1 case management hearing, Mother's counsel asked the judge to confirm that they were not going to relitigate the previous trial, and that the Division would not be permitted “[t]o bring in the mountain of transcripts from the previous trial as rebuttal.” The court confirmed, to Mother's satisfaction, that the Division would not be permitted to relitigate the A.J. matter by introducing those transcripts. Instead, the court admitted only the opinion from the A.J. litigation.
7. FN7. In any event, “the filing of a Title 30 action and the entry in that action of an order regarding custody and related matters such as visitation, which supersedes any orders entered in the Title 9 action, moots the parent's appeal from the dismissal of the Title 9 action before an adjudication of abuse or neglect.” A.P., supra, 408 N.J.Super. at 255.
8. FN8. At the April 23, 2012 hearing, counsel for Mother orally moved to have the judge recuse himself because he had not “proper[ly] adjudicate[d]” the A.J. matter, which was pending on appeal at that time. The judge found no impropriety, denied the motion, and invited Mother to make a formal motion. Mother made no such motion. We note that it was perfectly appropriate for the judge to hear both matters. See N.J. Div. of Youth & Family Servs. v. L.C., 346 N.J.Super. 435, 439–40 (App.Div.2002).