NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.W.

RECORD IMPOUNDED


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1845-11T1

A-1846-11T1



NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1


Plaintiff-Respondent,


v.


C.W. and R.D.M.,

Defendants-Appellants.


___________________________________


IN THE MATTER OF THE GUARDIANSHIP

OF K.N.W. AND C.D.W.,


Minors.

____________________________________

January 10, 2014


Argued December 2, 2013 Decided


Before Judges Ashrafi, St. John and Leone.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-42-10.


Marc D. Pereira, Designated Counsel, argued the cause for appellant C.W. (Joseph E. Krakora, Public Defender, attorney; Mr. Pereira, on the brief).


Carol Willner, Designated Counsel, argued the cause for appellant R.D.M. (Joseph E. Krakora, Public Defender, attorney; Ms. Willner, on the brief).


John W. Tolleris, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mary Jane Lembo Cullen, Deputy Attorney General, on the brief).


Damen J. Thiel, Designated Counsel, argued the cause for minor respondents (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Thiel, on the brief).


PER CURIAM


This case involves the termination of parental rights to two children, C.D.W. born in January 2009, and K.N.W. born in October 2009. Their mother, R.D.M. (Mother), and father, C.W. (Father), appeal from the judgment of guardianship filed on October 31, 2011. Mother also appeals the April 26, 2013 order denying her motion for relief from that judgment. We affirm.

I.

Mother and Father were involved with the Division concerning other children before C.D.W. and K.N.W. were born. Father had been charged with endangering the welfare of his child from a prior relationship after he punched the mother's car window, causing broken glass to hit the child. That child, and Father's other children, do not reside with him.

While Mother was pregnant with C.D.W., she became involved with the Division regarding her child K.M. In August 2008, Mother and K.M. moved into a homeless shelter after living in an abandoned building for eight months. They were discharged from the shelter for non-compliance with the rules; Mother argues that was due to her cognitive problems. The shelter alerted the Division, expressing concern about Mother's mental and care-giving abilities. In October 2008, the Division filed a complaint against Mother alleging abuse and neglect. The Division obtained custody of K.M. based on Mother's admitted inability to provide a safe and stable home, and because Mother repeatedly tested positive for marijuana while pregnant with C.D.W.

In January 2009, C.D.W. was born five weeks early, weighing less than five pounds. C.D.W. also had a heart condition and was kept in intensive care. On January 30, the Division amended the abuse-and-neglect complaint to obtain custody of C.D.W. When C.D.W. was discharged from the hospital, he was placed in a foster home for medically fragile children.

The court ordered Mother to address her substance abuse. Nonetheless, while pregnant with K.N.W., Mother tested positive for amphetamines and discontinued her drug treatment. In October 2009, K.N.W. was born prematurely, weighing less than five pounds.

On November 4, 2009, the Division filed a second amended abuse-and-neglect complaint to obtain custody of K.N.W, and immediately placed K.N.W. with a foster mother. In April 2010, the Division placed C.D.W. with K.N.W's foster mother, with whom the children have lived ever since.

Meanwhile, the Division arranged for Mother to receive services, including from the Lester A. Drenk Behavioral Health Center (Drenk) starting in January 2009. Father joined Mother in attending Drenk's parenting skill training late in 2009. In January 2010, however, Father twice failed to attend parenting skills training and therapy, and Mother was still unable to achieve her housing goal despite a year of services.

As a result, at the January 25, 2010 permanency hearing, the court found that the Division's goal should be changed from reunification to termination of parental rights. The court found that Mother "has not remedied the circumstances that led to removal and has not demonstrated the ability to make good judgments for her children," and that Father "continues to be unable to provide a safe and stable home and has not completed services." On April 9, 2010, the Division filed a guardianship complaint to terminate the parents' rights to K.M. and C.D.W., and amended the complaint to add K.N.W. on July 15, 2010.2 Meanwhile, the court ordered that services and supervised visitation continue for the parents.

The Honorable Audrey P. Blackburn held a five-day guardianship trial in September and October 2011. The Division presented testimony from the case worker and psychologist Dr. Jason Scott Fleming. The judge found both to be credible, and adopted their testimony as her findings of fact. The parents presented no testimony. On October 31, 2011, the judge issued her decision terminating the parental rights of Father and Mother to C.D.W. and K.N.W and granted guardianship over the children to their foster mother, to be followed by adoption. The parents appeal.

II.

"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 N.J.S.A. 30:4C-15.1(a), the Division must prove by clear and convincing evidence that termination is in the best interest 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).3 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.


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


"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) (quoting K.H.O., supra, 161 N.J. at 348).

"Appellate review of a trial court's decision to terminate parental rights is limited[.]" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record." F.M., supra, 211 N.J. at 448 (citations and quotation marks omitted). "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." E.P., supra, 196 N.J. at 104 (citation omitted). Additionally, "family court decisions are entitled to special deference '[b]ecause of the family courts' special jurisdiction and expertise in family matters.'" In re State ex rel. A.D., 212 N.J. 200, 230 (2012) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "We 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 (citations and quotation marks omitted). We must hew to that standard of review.

III.

"[T]he two components of the harm requirement, N.J.S.A. 30:4C-15.1(a)(1) and (2) are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." In re Guardianship of DMH, 161 N.J. 365, 379 (1999). Accordingly, "[w]e first address prongs one and two of that test" together. E.P., supra, 196 N.J. at 104.

Neither C.D.W. nor K.N.W. has ever been in the care of Mother or Father. Thus, we must consider whether the children's "safety, health or development" will "be endangered by the parental relationship" if the children are placed in their care. N.J.S.A. 30:4C-15.1(a)(1). The Division "does not have to wait 'until a child is actually irreparable impaired,'" but can address a potential harm that "'threatens the child's health and will likely have continuing deleterious effects on the child.'" F.M., supra, 211 N.J. at 449 (citations omitted). We must also 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).

The issues that led the Division to take and retain custody of the boys were inadequate housing, drug use, and Mother's mental limitations. Concerns also arose over the limited parenting abilities of both parents. The evidence supports the judge's findings that those harms were not eliminated.

First, the judge found that "adequate and stable housing continues to be an issue" for the parents. Lack of appropriate housing poses a risk to children. N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J. Super. 428, 444 (App. Div. 2013). Mother admittedly lacked adequate housing before and after C.D.W.'s birth. In mid-2009, Drenk's recommendation for reunification with Mother was thwarted because she had not obtained adequate housing.4 In March 2010, Father claimed he had obtained a four-bedroom house, and a month later asserted that he and Mother anticipated moving into an apartment, but no proof of such housing was ever provided to the Division.

Prior to trial, the parents claimed to be residing together in a one-bedroom apartment, but they repeatedly refused to allow the caseworker to enter the apartment to see if they could maintain a safe household. The parents claimed that the one-bedroom apartment would not be where they would live with the children, and that they would be moving to an unknown address. Mother later nonetheless claimed that the children could live in the one-bedroom apartment. At trial, the parents presented no proof of adequate housing, or a plan to obtain other housing. The judge appropriately found that neither Mother nor Father was "able to provide a safe and stable home for these children, and certainly [Father] has demonstrated that he is unwilling to provide that safe and stable home for his children." See N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 93 (App. Div. 2013).5

The second issue concerned drug use. As noted above, Mother tested positive for drugs while pregnant with C.D.W., and again when she was pregnant with K.N.W. Thereafter, a drug issue arose with Father. On June 30, 2011, the caseworker received a voicemail that, unbeknownst to the parents, recorded an argument in which Mother repeatedly told Father he would not get his children back because "he smokes so much weed." The parents claimed Mother made the statements in anger, but the Division asked Father to attend a substance abuse evaluation, which Father repeatedly failed and ultimately refused to attend.

Third, both parents' mental ability and parenting skills were called into question. After the homeless shelter expressed concerns for Mother's mental health, the Division had her evaluated. A 2008 psychological evaluation expressed concern at Mother's severely-delayed thought processes, which interfered with her capacity to parent. A 2009 psychiatric evaluation diagnosed her as suffering from Adjustment Disorder with Depressed Mood, and raised concerns about mental retardation. A 2010 psychological evaluation found that Mother posed a high risk of neglect, even after a year of parenting classes. A 2010 psychological and bonding evaluation found that Mother was experiencing a severe mental disorder, and that both parents were functioning at the bottom of the borderline intellectual level and lacked stability. All of these evaluations raise serious concerns about the parents' ability, individually or jointly, to parent their children in a consistent, stable, and safe manner.

In 2011, Dr. Fleming did a psychological evaluation of Mother after reviewing the prior evaluations. Though Mother had received two years of services, Dr. Fleming found she had only a limited participation in and benefit from counseling. He expressed concern about her ability to manage the stress in her life, even without the pressures of parenting. He found that she lacked insight, had "a grandiosity regarding her skills and abilities," and did not make meaningful changes in her life despite the services provided. Mother tested at the bottom of the borderline range of intellectual functioning. Dr. Fleming opined that this would impair her judgment, affect her ability to plan and anticipate, and thus cause difficulty in parenting. Dr. Fleming concluded that Mother did not have the ability to provide effective parenting to C.D.W. and K.N.W., and could not provide the children with the needed stability, consistency, guidance, and protection. Dr. Fleming added that his opinion was strengthened by the fact that Mother was pregnant at the time of trial, because another child would add to her stress.

Dr. Fleming could not do a psychological or bonding evaluation with Father because he declined to participate. When the caseworker came to transport Father to the evaluations, he said he would rather not attend because "some things were going on in his life." Father did not respond to repeated inquiries by the caseworker about rescheduling. Father even failed to attend his defense evaluation.

Indeed, neither parent was willing or able to eliminate the harms to the children, despite the services provided by the Division. As the judge found, both parents "continued to struggle with compliance with the services provided to them by the Division." Although Mother attended most of the classes offered her by the Division, she seemed to absorb and apply very little of what was being taught. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986) (stating that inability to benefit from therapy or instruction because of mental limitations can make reunification an unreasonable goal).

Father eventually completed an anger management program from Catholic Charities, and enrolled himself in a parenting program at Mercer Street Friends. He did relatively well when he attended the Drenk reunification services, but he had not completed them when they were terminated because the goal had changed from reunification. Thereafter, Father refused any services that were not designed for reunification. Father failed to complete parenting classes, refused to cooperate with substance abuse evaluations, and declined to attend Dr. Fleming's bonding and psychological evaluations. Father did not attend individual counseling at the Children's Home Society, claiming that the sessions conflicted with his unspecified work, and did not respond to attempts to reschedule. When the caseworker drove Father to the counseling, he refused to get out of the car. When the caseworker said she could not wait all day, Father said he would use that as his excuse why he did not attend.

Father claims that his failure to participate in services should be excused because a May 2010 assault fractured his skull, which he claimed made him prone to seizures. He missed visitation for "weeks at a time" in July and August 2011, claiming he could not go out for visitation because the heat might cause a seizure. However, the caseworker saw him go outside on hot days for other purposes.

In September 2011, he ignored letters, visits, and phone calls trying to get him to re-engage in services. Father also engaged in "aggressive," "disruptive, [and] disrespectful conduct toward the supervising staff." On one visit, he was too busy arguing to keep K.N.W. from falling out of a chair.

Hence, the evidence supports the judge's findings that Father was unwilling to address the harm to the children. See A.W., supra, 103 N.J. at 610 (stating that further efforts at reunification are not required for parents who refuse to engage in therapy or other services, and who threaten caseworkers). Even assuming that Father's failure to participate in services was instead due to inability arising from his head injury, the second prong is satisfied if a "parent is unwilling or unable to eliminate the harm facing the child[ren]." N.J.S.A. 30:4C-15.1(a)(2) (emphasis added).

Indeed, to the extent both parents' mental or physical impairments put the children at risk of harm, or prevented the parents from eliminating the risk of harm, "[t]hat the parents may be morally blameless is not sufficient to tip the scales in their favor." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002); see A.W., supra, 103 N.J. at 615 & n.13 (the borderline intelligence of parents "cannot excuse their causing harm to their children"). The issue under the statute is "the 'best interests of any child,' not simply the presence or absence of culpable fault on the parents' part." In re Guardianship of R., 155 N.J. Super. 186, 195 (App. Div. 1977) (quoting N.J.S.A. 30:4C-15(c)).

The parents' inability or unwillingness to provide safe and adequate housing, avoid drug use, and utilize services provided by the Division is of particular concern because both children have special needs. C.D.W. still has a heart condition which must be evaluated annually. C.D.W. is delayed three to six months in speech and motor skills, which requires therapy. K.N.W. has mild asthma and acid reflux, which require medication, and has bowed legs, which must be monitored. Dr. Fleming was concerned with Mother's ability to get the children the care they need, putting them at risk.

Thus, the judge properly concluded that Mother could not remediate the harm that would be caused by the parental relationship and the lack of safe and stable housing, and that Father "has not made the necessary efforts to even begin to remediate that harm." Despite years of services, there was no indication that either parent could "become fit in time to meet the needs of the children." Cf. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263 (App. Div. 2005) (finding a six-month delay for mother's therapy insufficient to justify terminating her parental rights). Accordingly, the judge correctly found that the Division had satisfied N.J.S.A. 30:4C-15.1(a)(1) and (2).

IV.

We must next consider whether the Division "made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." N.J.S.A. 30:4C-15.1(a)(3). We must evaluate the Division's efforts "with reference to the circumstances of the individual case," including the parent's degree of participation. DMH, supra, 161 N.J. at 390. "'The diligence of [the Division's] efforts on behalf of a parent is not measured by' whether those efforts were successful." F.M., supra, 211 N.J. at 452 (quoting DMH, supra, 161 N.J. at 393).

Here, the Division offered Mother and Father a wide variety of services, including drug evaluations and therapy, psychological and psychiatric evaluations and therapy, group and individual counseling, anger management counseling, parenting skills training, and supervised visitation.6 The Division also considered alternatives to termination, including reunification and placement with relatives.

Mother admits the services were "plentiful," but contends that the Division should not have offered parenting services because she was originally substantiated for homelessness. In fact, the Division properly provided all of these services after the homeless shelter expressed concern for her mental status and parenting skills.

Mother and Father argue that the Division should have provided assistance to obtain adequate housing. The Division, however, is not required to provide subsidized housing. The Division did contact Social Services to request housing assistance, which the parents ultimately received. It also sent the parents to Drenk which offered educational and work activities to improve their housing situations. Such "referrals to obtain housing" were sufficient to constitute reasonable efforts, particularly given the parents' claims that they were obtaining their own housing. See DMH, supra, 161 N.J. at 393.

Accordingly, there was sufficient evidence to support the judge's finding that the Division made reasonable efforts to provide services.

V.

The fourth prong "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609. "[T]he question to be addressed under that prong is whether, after considering and balancing the two relationships, the [children] will suffer a greater harm from the termination of ties with [their] natural parents than from permanent disruption of [their] relationship with [their] foster parents." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 181 (2010) (citations and quotation marks omitted). "'[T]o satisfy the fourth prong, the State should offer testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents.'" F.M., supra, 211 N.J. at 453 (citations omitted).

The State presented a well-qualified expert whose testimony was unrebutted. Dr. Fleming conducted bonding evaluations with Mother and the foster mother shortly before the September 2011 trial, and attempted to do a bonding evaluation with Father. Father declined to participate in a bonding evaluation with Dr. Fleming, however.

A bonding evaluation of the natural parents is required "[i]n hearing a petition for termination in which the fitness of natural parents is neither relied on nor disputed by the agency." See In re Guardianship of J.C., 129 N.J. 1, 19, 24 (1992). Here, however, the Division primarily relied on the parents' unfitness as the basis for termination. Moreover, the children were never in the parents' care. Most importantly, Father refused the Division's reasonable efforts to arrange a bonding evaluation, thus posing one of the circumstances "in which comparative [bonding] evaluations would not be required." See N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440, 444-45 (App. Div. 2009) (noting that the mother "was advised by counsel not to attend a second bonding evaluation").

In any event, Dr. Fleming found that it would not do more harm than good to terminate the children's ties to Father and Mother. Dr. Fleming stressed that the same foster mother has been caring for K.N.W. since birth and C.D.W. since the age of fourteen months, and the parents had never had either child in their care. Dr. Fleming found that the foster mother was the primary attachment figure in the children's lives. They called her "mommy," looked to her for all their needs, and had a positive, healthy, secure bond with her. Indeed, the foster mother wishes to adopt both children. Dr. Fleming opined that breaking that bond would cause the children harm that Mother could not remediate.

Dr. Fleming acknowledged that the children's young age made it difficult to predict whether the harm would be severe and enduring. "In cases in which [the Division] seeks termination of parental rights, not on grounds of current unfitness but because of potential harm to the child based on separation from a foster parent with whom the child has bonded," the Division "must prove by clear and convincing evidence that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm." J.C., supra, 129 N.J. at 18-19; see N.J.S.A. 30:4C-15.1(a)(2). Here, however, the Division seeks termination primarily because of the unfitness of the parents, and thus a finding that the harm would be serious and enduring is not required. See N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 623 (App. Div.), certif. denied, 192 N.J. 68 (2007); N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996).

Father notes that his supervised visitation with the children was generally positive. Dr. Fleming similarly observed that Mother and the children had "a positive, pleasant interaction" while playing during her bonding evaluation. Dr. Fleming nonetheless found that such affection was not a parental bond, which he defined as an ability to connect, create trust, and address the needs of the child. Dr. Fleming opined any bond with Mother could be broken without severe harm to the children.

We recognize the positive visitations between the children and the parents, and that "'[t]he risk to children stemming from the deprivation of the custody of their natural parent is one that inheres in the termination of parental rights.'" K.H.O., supra, 161 N.J. at 355 (quoting J.C., supra, 129 N.J. at 26). We appreciate that "'[p]arents, particularly those with limited incomes and unstable housing and work experiences, should be able to turn to the foster-care system without fear of losing their children.'" Id. at 359 (quoting J.C., supra, 129 N.J. at 21). Nonetheless, the expert and other evidence at trial showed that each parent here was "not capable of being a parent, and [had] provided no reliable indication" of attaining that capability in the near future. Id. at 357.

Dr. Fleming opined that children need permanency and stability. As a result, Dr. Fleming supported termination followed by adoption. The judge agreed, stressing the need for permanence, and finding that Mother and Father could not "provide for themselves that permanence, and certainly not for their [children]." New Jersey has a "strong public policy in favor of permanency," and continuing the children in long-term foster care to wait for the parents to improve "does not accord with the best interests of the child as currently reflected in our law." Id. at 357, 360; accord F.M., supra, 211 N.J. at 453-54. Here, the children have been offered adoption by their foster mother who has cared for K.N.W. since birth, and for C.D.W. for most of his life. They have flourished under her care, and they have established a strong bond with her, the loss of which would be harmful to them. Under those circumstances, "the evidence clearly and convincingly establishes that terminating the parental rights of [Mother and Father] will not do more harm than good to" the children. K.H.O., supra, 161 N.J. at 361. We thus affirm the judge's October 31, 2011 order terminating parental rights in favor of adoption by the foster mother.

VI.

Mother also appeals the judge's April 26, 2013 order denying her motion for relief from the October 31, 2011 order. That motion was based on events after the order, in other cases, concerning other children.

In November 2011, Mother gave birth to Y.W. The Division was awarded custody of Y.W. In Y.W.'s guardianship case, Mother was evaluated by defense psychologist Andrew P. Brown on July 17, 2012. He found that Mother had a learning disorder, attention deficit disorder, dyslexia, and low average intelligence, but he critiqued the prior findings that she was of borderline intelligence. Dr. Brown opined that there was no indication that Mother was incapable of parenting, or that she should not be allowed "eventual family reunification with adequate housing and financial support established." He did not recommend reunification at present with any of her children.

In the Y.W. case, Dr. Fleming evaluated Mother and Father again in August and September 2012. He found that they had progressed, that Mother had obtained independent housing, and that the Division should attempt a gradual transition toward reunification with Y.W. In a November 9, 2012 report, Dr. Fleming found that the parents had become more stable since his previous evaluation, but that Mother would need a larger apartment before reunifying with Y.W. Dr. Fleming made clear that C.D.W. and K.N.W. should remain with their foster mother. Indeed, Mother said Dr. Fleming had been "telling the truth" when he testified regarding C.D.W. and K.N.W.

In a January 18, 2013 report regarding Mother's older child K.M., Dr. Fleming found that Mother was making gradual improvements. However, Dr. Fleming found that her progress was fragile, and stressed that "we have not yet seen the extent to which she will be able to manage even one child." Dr. Fleming was "very concerned" that she would not be able to care for both K.M. and Y.W., and noted that Mother would need an even larger apartment to care for more than one child. Emphasizing that "permanency decisions cannot continue to be put on hold indefinitely with the hope that things continue to progress positively in the future," Dr. Fleming recommended kinship legal guardianship for K.M.7

On February 14, 2013, Mother filed a motion to supplement the record in this appeal with the later reports of Dr. Brown and Dr. Fleming. We denied her motion without prejudice, but temporarily remanded to give her an opportunity to seek relief under Rule 4:50-1. Mother filed a motion arguing that these reports were "newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49." R. 4:50-1(b).

"Courts should use Rule 4:50-1 sparingly, in exceptional situations[.]" Hous. Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994). A movant has the burden of establishing the requirements of Rule 4:50-1. N.J. Div. of Youth & Family Servs. v. T.G., 414 N.J. Super. 423, 434 (App. Div.), certif. denied, 205 N.J. 14 (2010), cert. denied,. __ U.S. __, 131 S. Ct. 2925, 179 L. Ed.2d 1255 (2011). In addition, because this is a guardianship action, [w]here the future of a child is at stake, there is an additional weight in the balance: the notion that stability and permanency for the child are paramount." J.N.H., supra, 172 N.J. at 474-75. "Thus, in determining a Rule 4:50 motion in a parental termination case, the primary issue is . . . what effect the grant of the motion would have on the child." Id. at 475. Further, "the passage of time in a parental termination case, especially where a child has successfully adjusted to a long term placement, is of much greater significance than it would be in practically any other context." Ibid. A trial court's decision on a motion under Rule 4:50-1 "'will be left undisturbed unless it represents a clear abuse of discretion.'" Id. at 473 (quoting Hous. Auth., supra, 135 N.J. at 283).

The judge properly found that the reports did not satisfy the requirements for newly-discovered evidence. The judge noted that Mother "had an opportunity to obtain her own expert evaluations prior to the guardianship trial [for C.D.W. and K.N.W.] and, in fact, elected not to do so." She thus cannot obtain relief based on Dr. Brown's report. See DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009); see also Posta v. Chung-Loy, 306 N.J. Super. 182, 206 (App. Div. 1997) ("[N]ewly discovered evidence does not include a post-trial realization of the inaccuracy of medical proofs upon which the plaintiff relied at trial, and the attempt to remedy the same."), certif. denied, 154 N.J. 609 (1998). Dr. Fleming's 2012-13 reports reflect developments after the trial, and those reports largely support the validity of the October 31, 2011 order. See Aiello v. Myzie, 88 N.J. Super. 187, 196-97 (App. Div.) (rejecting "newly-discovered evidence" claim based on later developments not conforming to an expert's opinion at trial), certif. denied, 45 N.J. 594 (1965). Most importantly, none of the reports contain any information "which would probably alter [that] order." R. 4:50-1(b). Indeed, they do not recommend reunification for C.D.W. and K.N.W., or Mother's immediate reunification with any of her children. Particularly given the passage of time, the children's success in their foster mother's care, and the need for permanence, we conclude that the judge did not clearly abuse her discretion. See N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 229 (2010); In re Guardianship of J.N.H., 182 N.J. 29, 31 (2004).8

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, which included the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012. We will refer to it as the Division.

2 The Division later withdrew this application for guardianship over K.M. K.M.'s custody was addressed in separate litigation.

3 "'[C]lear-and-convincing evidence is that which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the precise facts in issue.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010) (citation omitted). "'[A]ll doubts must be resolved against termination of parental rights[.]'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102-03 (2008) (quoting K.H.O., supra, 161 N.J. at 347). Nonetheless, the clear and convincing evidence standard "is less stringent than the criminal standard of beyond a reasonable doubt," In re Perskie, 207 N.J. 275, 289 (2011), which is not required here because "termination proceedings often require the factfinder . . . to decide issues difficult to prove to a level of absolute certainty," Santosky v. Kramer, 455 U.S. 745, 769, 102 S. Ct. 1388, 1403, 71 L. Ed.2d 599, 616 (1982).

4 No one recommended reunification thereafter.

5 Further, neither parent had offered proof of a source of income to allow them to obtain adequate housing. Mother has not been employed since 2008, and her only income was Social Security benefits for her learning disability. Father was approved for Social Security benefits, and claimed to be working. However, he refused to provide proof of employment, and the caseworker was unable to determine his source of support.

6 Contrary to Father's contention, the visitation periods were of reasonable length.

7 We are informed that K.M. has since been placed with a kinship legal guardian, and that reunification with Y.W. did not occur until July 2, 2013.

8 Accordingly, we need not address the Division's contention that the motion was untimely under Rule 4:50-2.