NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.J.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-0194-12T4

A-0197-12T4

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

 

Plaintiff-Respondent,

 

v.

 

C.J. and J.J.,

 

Defendants-Appellants.

__________________________________

 

IN THE MATTER OF J.J., C.J.,

S.J., J.J., and C.J., minors.

__________________________________

August 8, 2014

 

Argued June 4, 2014 - Decided

 

Before Judges Waugh, Nugent, and Accurso.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket Nos. FN-14-155-10 and FG-14-36-12.

 

Cecilia M.E. Lindenfelser, Designated Counsel, argued the cause for appellant C.J. (Joseph E. Krakora, Public Defender, attorney; Ms. Lindenfelser, on the briefs).

 

Ryan T. Clark, Designated Counsel, argued the cause for appellant J.J. (Joseph E. Krakora, Public Defender, attorney; Mr. Clark, on the briefs).

 

Peter Alvino, Deputy Attorney General, argued the cause for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Alvino, on the briefs).

 

Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minors J.J., J.J., and C.J. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the briefs).

Lisa M. Black, Designated Counsel, argued the cause for minors C.J. and S.J. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the briefs).

PER CURIAM

Defendants J.J. (Jay) and C.J. (Clea), parents of five children, have jointly appealed from a Family Part decision that they abused or neglected their children.1 The Law Guardian for the second and third oldest children supports their appeal. Defendants have separately appealed from a Family Part order terminating their parental rights to their oldest and two youngest children. The Division of Child Protection and Permanency (the Division), formerly the Division of Youth and Family Services, opposes all three appeals, as does the Law Guardian for the oldest and two youngest children.

We have consolidated the three appeals for purposes of this opinion. The proofs the Division presented at the respective hearings to prove their allegations, which defendants adamantly denied, and the evidence defendants presented to refute the Division's allegations, resulted in a record exceeding 9000 pages of documentary evidence and transcripts. Having considered defendants' arguments in light of the extensive record and controlling law, we conclude that the Family Part judge's findings of fact in the abuse or neglect hearing are insufficient to support its conclusion that defendants abused or neglected their second and third oldest children. With that exception, the Family Part judges who presided over the respective hearings found facts and made credibility determinations that are supported by substantial evidence in the record, and the judges soundly applied relevant legal principles to the facts they found. Accordingly, we affirm the finding of abuse or neglect as well as the termination of defendants' parental rights to their oldest and two youngest children.

I.

Jay and Clea married in 1997. Jay, a military officer, has served for approximately seventeen years. He has a bachelor's degree in criminal justice and has taken some credits toward a master's degree. In addition, he has had considerable training in counseling and caring for children, as well as counseling for married couples. He and Clea have trained to care for foster children.

Clea has a bachelor's degree from Purdue University's School of Child Development and Family Studies, where she specialized in at-risk families. Her degree enabled her to work as part of a multi-disciplinary team in any social work field. She has performed volunteer work with teenage court programs and has worked at various daycare centers "to get training in child development and caring for children." She has also trained in crisis situations to be able to "counsel and deal with children [of] various ages from birth" until they become adults.

Jay and Clea have three children born of their marriage: Alex, now sixteen, Blair, now fourteen, and Casey, now twelve. Their adopted son died in 2008 at age two. In 2009 they adopted Clea's cousin's two children, Emerson and Franki, now ages eight and six, respectively. Franki was hospitalized on April 15, 2010. The next day, a Division intake worker received a telephone call about Franki's condition. The caller's report triggered the Division's investigation, which has dramatically altered the family's lives and resulted in the sharply contested and prolonged legal proceedings that have resulted in these appeals.

A. The Division's Removal of the Children.

The caller who telephoned the Division on April 16, 2010, reported that Franki had been hospitalized the previous day after running a 102-degree fever and experiencing "jerky head movements" with her eyes "rolling back" for approximately forty minutes. Franki had no history of a seizure disorder.

Following her arrival at the hospital, Franki, then two years old, was diagnosed with dehydration and an extremely high concentration of salt in her blood, a condition known as hypernatremia. Franki also had "staph infections on her cheek and lesions on her buttocks," as well as a history of failure to thrive. The caller knew of no medical explanation for either Franki's hypernatremia or her failure to thrive. The caller was waiting for a report from a radiologist concerning suspected fractures of Franki's right wrist and humerus.

According to the caller, this was not the first time Franki had been hospitalized. She had been hospitalized in Indiana three months earlier, in January 2010, with high sodium levels, a staph infection, and a yeast infection that necessitated the surgical removal of a portion of her lip. Nor was this the first time one of defendants' adopted children had suffered from such conditions. The caller explained that defendants' first adopted child had died two years earlier. That child had a skin infection, skin lesions, and a seizure disorder. Although the child's pediatrician had requested an autopsy due to strong concerns about the nature of his death, the child "was cremated before this was done." The caller believed the death was listed as undetermined. That belief was incorrect. The child's death certificate stated the cause of death as "seizure disorder by history."

In response to the telephone call, caseworkers Alison Cassone and Irma Akcay went to the hospital, looked in on Franki, spoke with her doctors, and spoke to Clea. When Cassone looked at Franki, Franki looked back but barely moved her head. Franki had "swollen eyes, some scars on her face and arms," and her "stomach appeared large for her small body." Her "top lip had the appearance of a cleft lip and her skin appeared to be very dry." She did not speak.

A doctor told the caseworkers that in her fourteen years as a practitioner she had "never seen sodium levels in a child that high [without] an explanation." Doctors also told the caseworkers that Franki suffered from severe malnutrition and weighed only fourteen pounds. The child had suspected fractures of her humerus and wrist. A skeletal scan showed a frontal hematoma and a skull condition that might have resulted from a fracture but could also be some type of deformity. The doctors could not determine without further investigation whether Franki had been abused, but they were willing to say she had been neglected due to her degree of malnourishment and the poor condition of her skin.

Before leaving the hospital, the Division caseworkers sat in on an interview between Clea and law enforcement authorities who had arrived, and then one of the caseworkers informed Clea that the Division intended to remove her five children. Clea began to cry. She told the caseworkers that she was the caregiver to the children and that Jay "was away for a long period of time." The caseworkers quoted Clea as saying, "[i]f there is any abuse going on, it would be me and not him."

That night, the Division removed the children and placed them in resource care. The frightened children and their father all cried when Division workers loaded the children into vans and drove them to resource homes.

Four days later, on April 20, 2010, the Division filed an order to show cause (OTSC) and verified complaint seeking custody of defendants' children. Following a hearing the same day, the court signed the OTSC and placed the children in the Division's custody, citing as its reasons Franki's "malnourishment [and the fact that] the bruises and injuries she sustained are similar to those sustained by another adopted child who died at the same age two years earlier." The court scheduled the return date of the OTSC for May 13, 2010.

On the return date, the court ordered that the Division retain custody of the children. Following several case management conferences, and after conducting in camera interviews of the older children, the court commenced the fact-finding hearing. The hearing began on October 21, 2010, and continued sporadically until the court rendered its decision on August 4, 2011.

B. The Fact-Finding Hearing.

Through the testimony of ten witnesses as well as voluminous documentary evidence, including statements the four older children had made to law enforcement personnel and to social workers employed by the Center for Evaluation and Counseling (CEC) during a forensic assessment of the family, the Division attempted to establish that defendants abused or neglected Franki in three ways: by inflicting excessive corporal punishment, by causing her to be malnourished, and by poisoning her with salt. The Division also attempted to prove defendants abused Emerson by inflicting excessive corporal punishment; and abused the three older children either by inflicting excessive corporal punishment or by exposing them to the excessive corporal punishment of their two and four-year-old siblings. Defendants presented five witnesses and testified themselves to refute the Division's proofs.

Irma Akcay, one of the Division caseworkers who had responded to the initial telephone call, testified about the events that resulted in the Division removing defendants' children. We have recounted those events above and there is no need to repeat them.

The Division presented the statements the children had made about the way their parents had disciplined them. Alex, the oldest child, said that Clea was the primary disciplinarian; "Dad didn't go to the extremes that Mom did." He also said the adopted children, Emerson and Franki, were disciplined more severely than the three older children. Alex explained that his parents referred to their disciplinary methods as "discipline and training." They disciplined according to the Bible.

The primary disciplinary method was using a "pop-pop," a stick that was six-sided, an inch thick, and about eleven inches long. If a child misbehaved, that child was given "ten swats on [the] bottom with the pop-pop." Alex said Emerson and Franki got hit on their thighs and on their buttocks, at times with their pants on, at other times with their pants off. Sometimes Emerson and Franki were also struck on the hands. When disciplined with the pop-pop, Alex's brothers and sisters were allowed to cry silently, but they were "not allowed to cry out loud, or gasp while breathing." If they did, their mother would give them ten more swats "and it would be ten more, ten more, until they stopped crying, or gasping for air, and yelling, and screaming."

Alex also explained that Franki, the youngest child, did not like red meat. Clea would put crushed red pepper in Franki's mouth so that Franki would chew the meat. His mother would do this every time that Franki would not eat. His mother would also hold Franki's lips closed so that Franki would chew with her mouth shut.

Emerson liked to sneak food. When she snuck food, Clea would make her eat a mixture of crushed red pepper and hot sauce; she "would take out a bunch of hot stuff, and make a mixture, and make [Emerson] drink it." In addition to sneaking food, sometimes Emerson drank water out of the toilet when Clea didn't "give her water right away." When Emerson drank from the toilet, her mother gave her crushed red pepper and would sometimes make the child eat a raw onion. Alex said that most of the time, Clea made both Emerson and Franki wait until after meals before permitting them to drink because Franki's stomach became distended when she drank too much water.

Alex also described incidents where his mother repeatedly disciplined Franki. Clea would hit Franki in the hallway when Franki was not walking fast enough, and at those times would hit her on the forehead or on the back of the head to make her walk faster. Alex added that, for the same reason, his mother would sometimes hit Emerson in the forehead. Franki also had trouble climbing into her car seat. When she made noise, Clea would take her down out of the seat and spank her with the pop-pop stick. Then Franki would have to climb up again and if she made more noise, her mother would make her start over.

The day before Franki was admitted to the hospital, she collapsed. According to Alex, Clea told Franki to get down from the table and it looked like Franki fell asleep. Clea stood Franki up again, Franki fell down, and Clea stood her up again. Every time Franki sat back down at the table, Clea would hit her on the buttocks with the pop-pop stick.

Concerned with the way Clea disciplined his siblings, Alex discussed the situation with his father, but Jay did not listen. Rather, he said that the Bible required such discipline. Clea apparently realized that at times she was disciplining out of anger, because she told Alex the Bible says to spank in love, not anger. For that reason, she told the children that if she became frustrated, they should put a hand on her shoulder. Alex thought that if he put his hand on his mother's shoulder, Emerson and Franki would not have to suffer any longer. Once when he placed his hand on Clea's shoulder, however, she struck his hand.

Alex said that although his father stated many times that he did not personally like "the training sessions," his mother did not seem to care. Jay would say, "[Clea], there are other ways to do this." Alex claimed Jay said repeatedly that he did not like what was going on.

When asked about his adopted brother who died, Alex said that his brother was also disciplined with the pop-pop. His brother, however, had "a whole bunch of physical disabilities," which Alex attributed to the child's mother using cocaine and alcohol while pregnant.

The next oldest child, Blair, confirmed during the CEC's forensic assessment that most of the time their mother would discipline them, though he added that if one of the children was really bad, their dad would do it. He also confirmed his parents' use of the pop-pop. He said that their mother would hit Emerson and Franki on their legs with the "pop stick." Blair had a mark only once; it was a small welt. He had seen marks on Emerson and Franki after they were hit. Clea had also hit Emerson and Franki with an open hand.

Blair also confirmed that Clea used "pepper flakes" with Emerson and Franki. If Emerson and Franki cried, yelled, screamed, or "got attitudes" when Clea was disciplining them, she would close their mouths so that they would swallow the pepper flakes. Blair's parents told the older children that Emerson and Franki were being trained to have control. Clea disciplined Franki for not eating, and Emerson for sneaking food. Blair revealed that on two occasions Emerson was disciplined by being forced to eat a few bites of raw onion. Blair said only his mother used hot pepper flakes, not his father.

Blair also explained that their father disciplined them by requiring them to do physical exercises, such as pushups, jumping jacks, and flutter kicks, an exercise involving lying on one's back, picking the feet up about six inches, and "fluttering" the legs. If a child's legs hit the ground, the child had to begin again.

Blair felt that his mother hit Emerson and Franki too much, and he and Alex told their father so. Blair thought it happened "too much for little stuff."

Casey, who was eight years old when interviewed, confirmed her parents' use of a pop-pop stick but said they only spanked the children on their bottoms, and then only six times, sometimes eight. She had been given ten swats on the bottom "a couple of times." Casey said that it did not hurt when she was hit six or eight times.

Casey initially denied that any of the children were given hot sauce or red pepper flakes. Later in the interview, however, she said that once her mother made a mixture of meat and hot sauce, and another time Emerson had to eat an onion as punishment because she drank out of the toilet three times. During a subsequent interview, Casey said her mother mixed pepper with meat because Franki was not eating meat. Casey confirmed that her mother asked the children to put a hand on her shoulder if she became angry. Alex was the person who would do it.

Casey explained that the day before Franki was admitted to the hospital, Franki refused to leave the table after eating. When she refused to get down, she got a "pop" and then her parents would tell her to get down again. Casey thought that Franki was hit about five times before she got down from the table. Casey explained that Franki "dropped." Casey refused, however, to continue to discuss the incident. She understood that the Division was trying to say her parents had committed child abuse. Casey thought that what the Division was doing was child abuse.

The Division corroborated the children's statements through testimony of its employees, the testimony of Alex and Emerson's resource parent, and to some extent through statements Jay and Clea made during the CEC forensic assessment. Akcay, the Division caseworker, had observed a large bruise on Emerson's ear after she was removed. According to Akcay, Emerson said that the bruise was caused by getting hit with the pop-pop. Sabrina Passucci, a permanency worker who had been involved in the case since May 2010, testified that Franki had thinning hair, was non-verbal, and was lethargic when Passucci first met her. In contrast, at the time of the fact-finding hearing, Franki weighed twenty-six pounds, was "very energetic," and was excitable.

Passucci also testified that Blair once remarked that parents need to beat their children so that they do not become wimps, though she provided no context for Blair's remark. Alison Cassone, a Division worker in the resource family support unit who conducted an interstate home study when defendants adopted Emerson and Franki, testified that defendants agreed corporal punishment was unacceptable. They did not disclose to Cassone that they physically disciplined their children.

Mary, the resource parent for Alex and Emerson, testified that the children came into her home on April 16, 2010. Following the placement, Emerson "would hoard food and she would eat until she was . . . forced to stop." Mary continually reassured the child that there would be plenty of food, and she also avoided using food as a method of rewarding or punishing Emerson. Within two to four weeks, Emerson's hoarding of food gradually began to stop. By the middle of the summer, it was pretty much gone.

Emerson had a large bruise on her ear when she was placed with Mary. When Mary's husband asked Emerson how she got the bruise, she responded, "mommy and daddy."

Mary also expressed her concerns about Emerson's "difficulty sustaining attention" and about Emerson's "comprehension problems." Mary did not believe that Emerson could process information.

The Division presented the testimony of two witnesses from the CEC concerning their interviews of Jay and Clea. Defendants sharply disputed the accuracy of their testimony, the competency of CEC personnel to administer and interpret psychological tests, and the content of the lengthy CEC report. Nevertheless, the CEC employees were permitted to testify and to give expert opinions.

Heather Diamond, a CEC employee who held degrees in social work, had interviewed Jay and had him undergo psychological testing. She spoke with Jay about a range of subjects that included his background, his views about disciplining the children, his methods of discipline, his and Clea's discipline of the children generally, and their discipline of Franki specifically. Diamond also interviewed Jay about the death of their first adopted child.

Jay had been deployed overseas twice, once in November 2001 to Kuwait and once from August 2009 to February 2010 to Iraq. He and Clea had been married thirteen years as of the time of the interview. After the first three children were born, he and Clea took into resource care a child whose mother had been addicted to a myriad of drugs. Among other things, the child had a seizure disorder. Jay and Clea eventually adopted the child. The child died of the seizure disorder in 2008. The same year, in July, Jay and Clea took into resource care Emerson and Franki, Clea's distant cousins, both of whom had special needs. Jay believed their adoptions were finalized in 2009.

Jay has always been religious. He is a non-denominational Christian. He believes in discipline because it is in the Bible. According to Diamond, Jay quoted the Bible as saying "Train up a child in the way that he should go, and when he is old, he will not depart from it." Jay also quoted the Bible as stating, "If you spare the rod, you spoil the child." Additionally, Jay quoted the Bible as stating, "A parent that does not discipline his child with a rod hates his child." When Diamond asked Jay, hypothetically, "if he would be willing to stop using physical discipline in order to have his children returned to his care," he allegedly replied:

I know that goes against the word of God. I would definitely consider it. You start to draw the line at me considering life versus rejecting God. What matters to me is my kids with me. My whole body wants to say, "yeah, whatever it takes. I'll find alternate means of discipline." The challenge would be wrestling with God. He knows I love the children and I don't want to harm them.

 

Jay explained that there was an organization that had developed a ladder of discipline. Jay and Clea developed a "ladder" for their family. A child's level on the ladder determined that child's privileges. For example, a child on the "high level" would be permitted to watch television or play video games for thirty minutes. A child on the "low level" would not be able to do those things. Instead, the child would read books and do "normal daily things."

Jay and Clea implemented "a myriad" of measures to discipline the children. In addition to the "ladder," they used rewards and consequences. For example, if a child took something from a sibling, the child would then have to do an act of kindness for that sibling. Jay and Clea also used "what the law calls 'corporal punishment.'" If a child's conduct warranted such punishment, one parent would administer "ten swats" with what the family called a "pop-pop stick." The pop-pop was once a ruler or plastic spoon. One of the rulers was a "wooden block" with an insignia from a military unit. It looked good on a desk but was not heavy enough to be a paperweight. Jay gave somewhat inconsistent accounts about how he administered the "pop-pop." He would make the boys drop their trousers but they kept their underwear on. The girls always remained fully dressed. Jay had at one time disciplined the children with a belt, but had discontinued that practice.

Jay and Clea also disciplined their children by having them do pushups, sit-ups, and flutter kicks; stand on the tips of their toes and lean against the wall with their fingers; and do laps.

Jay acknowledged that he and Clea once gave Emerson and Franki crushed red pepper and Tabasco sauce, but not as a form of discipline. The children would hold food in their mouths and not swallow. Franki would not chew meat. Jay and Clea would put crushed red pepper on Emerson's meat because it made her chew. "The tingling makes you want to move your mouth, instead of just holding the food." Jay also explained that they gave that practice up and started pureeing the food and giving Franki softer food. He and Clea did not intend to harm the children by using the crushed red pepper. They had read the back of the package and there was "nothing harmful in it . . . and there's definitely no sodium in it."

According to Diamond, Jay had disagreements with Clea about the way she disciplined the children. At times, she felt the children overreacted to physical discipline, and when they did so, she would sometimes administer further discipline. Jay insisted that discipline with a pop-pop should consist of ten swats, no more and no less. He did not believe that Clea should spank the children for showing emotion when they were disciplined.

Jay acknowledged that two of the older children had expressed concerns about Clea going overboard when physically disciplining Emerson and Franki, who both had special needs. Additionally, due to a hearing loss, Clea often talked in a louder tone.

Jay travelled two or three times each month, and when he did his family was on his mind. During those times, "that thought is there, that maybe [Clea] will go overboard in the discipline, and be a little bit too controlling of the kids, maybe physical abuse." Although Jay at times worried that Clea might harm the children, he did not feel that she would lose control. As a safeguard, and as a matter of accountability, Clea told the children that they should touch and rub her shoulder "if you feel that I am getting angry." On the day that Franki was hospitalized, Jay did not know whether Clea had disciplined her.

After testifying about Jay's interview, Diamond opined that corporal punishment and the use of crushed red pepper were ineffective methods for modifying the behavior of small children, such as Emerson and Franki. Diamond explained that children of that age "do not understand cause and effect." Consequently, they do not learn to modify their behavior, but rather experience pain and discomfort caused by the persons to whom the children turn for comfort. Diamond was not confident that Jay would change his approach to disciplining the children.

Jennifer Rosencrance, a CEC social worker with a master's degree in clinical counseling psychology, iterviewed Clea three times within three weeks and had Clea undergo psychological testing. Clea related that over the years, as she and Jay attended parenting classes and different conventions, their methods of discipline changed. When recounting the methods of discipline they had used, she identified the same types of discipline that Jay had described to Diamond. She confirmed that she and Jay had once disciplined their children by using a belt, but had stopped that practice. Clea also claimed she had stopped using any instruments and now used her hand only.

When Rosencrance asked Clea to describe her system of discipline, Clea explained that the family initially employed a chart, or ladder, and the children each had a peg on the ladder. However, Jay and Clea had discontinued the use of the ladder; they did not move the pegs anymore. Rather, they disciplined according to the Bible. According to Clea, they believed in chastisement, namely, "the use of the rod." Thus, discipline was

made up of the use of the rod, which would be spanking in terms of the world, and reproof, which is correcting the child in love to bring them back into right fellowship with the Lord, though speaking the truth to them about what was done, and praying with them about it, and then, giving the swats.

Clea's description of the "pop-pop" was consistent with the description that Jay had given to Diamond.

According to Rosencrance, Clea acknowledged being told that she had "anger management difficulties," and she also acknowledged that her tone was forceful, her personality dominating. In an attempt to change those characteristics, Clea had sought the support of "her Christian sisters" who prayed for her and checked in on her daily, her own sisters, and her husband. She also was studying the Bible and "going through an anger series." Additionally, the family had implemented a plan to have the children touch her shoulder if they believed she was becoming excessively angry. She felt that Alex used the practice to an extreme.

Clea expected the children to "maintain a certain level of self-control" when she was chastising or training them. She expected them to "put[] their hands on the bed and push[] their bottoms out." They were "not permitted to show excessive emotion." Emerson would occasionally hyperventilate when being disciplined, and that was something Clea did not want her doing. Casey, as well, once protested and Clea had to restrain her. Those were two instances of unacceptable emotional displays. At times, Franki would fall out, or go into a fit, that is, begin to kick and scream. When that happened, Clea would administer more swats. She would administer one swat for each time Franki kicked and screamed, and would continue until the child stopped.

Clea described Emerson as a loving and compliant child who had experienced some delays in verbalization and object recognition. When defendants first adopted her, Emerson had some difficulty with self-motivation and wanted to stay in bed quite a bit. Clea also said Emerson at times had "difficulty focusing her attention." To address those problems, Clea would read books and engage Emerson in preschool activities. Clea had also consulted with a pediatrician about Emerson's problems. Clea disciplined Emerson primarily for sneaking drinks and food. On one occasion, Emerson ate approximately eighteen cookies, leaving a trail "all over." That made Clea particularly angry, but Clea, recognizing her anger, did not discipline the child. Rather, she telephoned Jay so that he could deal with the problem.

Clea also explained that Emerson had started sneaking into the bathroom to drink water from the sink, the bathtub, and the toilet. In an effort to curb that behavior, Clea would put "hot pepper flakes" in Emerson's mouth. The pepper flakes were the type that one sprinkles on pizza, and Clea would use one-half of a teaspoon at a time. Clea once used Tabasco sauce and on another occasion used a piece of raw onion. By imposing discipline, Clea hoped that Emerson would make the association between the punishment of the hot pepper flakes and drinking from the bathroom. When Emerson failed to make the association, Clea decided that she would escort Emerson to the bathroom. Clea did not talk to a pediatrician about either Emerson's drinking water in the bathroom or the use of red pepper flakes to modify such behavior.

As to Franki, Clea explained that the child was generally a good eater but did not like to chew meat. She used discipline with Franki, primarily to train her to listen. According to Clea, Franki had particular difficulty with "listening about eating," getting up and down from the table, and getting out of the car. During the week leading up to Franki's hospitalization in April 2010, Franki was refusing to chew her meat. Clea took physical measures to make Franki chew.

When Franki refused to chew meat, Clea would sprinkle crushed red pepper in her mouth. At times she would have to keep the child's mouth closed, because Franki would try to spit out the meat. According to Rosencrance, Clea said that at one point she was using crushed red pepper with Franki on a daily basis. In fact, there was a time when she spent an entire day at the table trying to get Franki to eat meat.

Clea was very concerned about Franki's iron level, "which was why she was focused on having [the child] eat more meat." A doctor told Clea that Franki's hemoglobin was low, and that the child should eat more red meat and leafy green vegetables. Clea thought Franki was wasting away and was afraid she was going to die.

Clea worked with a pediatrician to establish a baseline for Franki's weight and height and to determine the cause of the child's small size. Clea thought that Franki's problems could have been related to either diabetes insipidus or hypothyroidism. To help Franki gain weight, Clea added extra fats, such as butter or olive oil, to Franki's diet, as well as formula to her milk. Clea would also put wheat germ on most of Franki's food, but mainly focused on getting her to eat red meat or green leafy vegetables.

When Rosencrance mentioned that doctors in the hospital had diagnosed Franki with malnutrition, Clea denied that the child was malnourished, insisting that Franki could not have been malnourished "because testing showed that she had a lot of nutrients in her urine." When asked about Franki's weight gain since her hospitalization, Clea said that they were giving the child whatever she wanted to eat or drink at the hospital. Clea did not feel that it was a healthy weight gain.

Clea admitted that Jay disagreed with her about some of her disciplinary methods. Specifically, Jay disagreed with her using crushed red pepper for discipline. He also disagreed with her using additional physical discipline when the children reacted emotionally to initial physical discipline.

Based on her psychological testing of Clea, her clinical interviews of Clea, and her training and experience, Rosencrance believed Clea's capacity "for change" was limited by her defensiveness. Rosencrance thought that it would be difficult for Clea to change her parenting style because Clea did not perceive that her current style was problematic.

The Division presented the testimony of three experts to establish that the conditions that threatened Franki's health and life were due to abuse or neglect, not to disease or a congenital affliction. Dr. Nina Agrawal, an expert pediatrician, studied Franki's hospital records. The doctor testified that the child's weight dropped from the fiftieth percentile at birth, which was about average, to the fifth percentile at eight months and again at nine months. At twenty months, Franki's weight dropped off of the Center for Disease Control growth chart for females between the ages of one day and three years old. Thereafter, the child gained about a pound when she was hospitalized in Indiana, then dropped off again at age two, when she was hospitalized. Dr. Agrawal explained that when an infant crosses two percentile benchmarks, or when a child drops below the fifth percentile, they are considered as failing to thrive.

Dr. Agrawal testified that the cause of a child failing to thrive is usually that the child is getting insufficient food to meet the nutritional needs appropriate for the child's age. That cause can be divided into three categories: not taking in enough food, losing calories due to a medical condition, or burning excessive calories, usually due to a very high metabolic rate. Franki had no disease to explain her failure to thrive, and the records from the Indiana hospital included a complete metabolic workup that did not reveal any "inborn error of metabolism that could have caused such a problem." Additionally, when Franki was hospitalized in April, she was evaluated by occupational therapists for her ability to eat and drink. By process of elimination, Dr. Agrawal concluded that Franki suffered from nutritional failure to thrive, which meant that the child was not being given sufficient nutrition.

The doctor testified that her conclusion was confirmed by Franki's eight-pound weight gain between her removal from defendants' home in April 2010 and the report of a pediatrician in July 2010. Franki had no obstacle to eating, drinking, and ingesting calories. Dr. Agrawal explained that the risks to an infant who receives insufficient food include poor brain development, which can lead to behavior and cognitive problems.

Dr. Agrawal also opined that multiple scars on Franki's face, abdomen, chest, arms, and legs were "not consistent with the medical history provided and [were] consistent with non-accident trauma."

Lastly, the doctor discussed Franki's hypernatremia, or high sodium level. She explained that "a normal level should be upwards of 145, something severely high would be upwards of 160," and more than 160 would require immediate medical attention because "it could be life threatening." When Franki was admitted to the hospital in April 2010, "her sodium level was 195, which [was] excessively high and rarely seen." Had her sodium level gone unchecked, complications could have included seizures, coma, and death.

The doctor explained that the "differential diagnosis" for Franki's hypernatremia could be divided into three categories: insufficient water intake, too much water loss, or too much salt intake. Medical or disease processes that could explain Franki's water loss had been ruled out, and there was no vomiting or diarrhea to account for water loss. Nothing in Franki's records or history suggested that she had access to a household source of salts, such as salt tablets. Moreover, it is difficult for a child to poison himself or herself with salt, because children generally do not like its taste. And if Franki had some problem that caused her not to drink when thirsty, her sodium level could not have normalized as it had when she was removed from her parents' custody.

Dr. Marty Sweinhart, a family practitioner, began treating Franki on February 8, 2010. At that time, Franki had recently been discharged from a hospital for hypernatremia. When the doctor saw Franki in February, the child had thrush, an oral infection, and was severely undersized and underweight. Franki had been diagnosed as failing to thrive, but Dr. Sweinhart did not know the cause of that condition. The doctor was also unaware of the cause of Franki's hypernatremia. Clea suggested no explanation for Franki's hypernatremia. Rather, Clea repeatedly asked the doctor "'what is this coming from'" and kept saying "'there's got to be something wrong.'"

In addition to the hypernatremia, Franki had a deformity and scabbing on her upper lip that was consistent with an ongoing infection, for which she was taking antibiotics. Franki also had scattered marks which looked to be "either some sort of an atypical dermatological problem or older traumatic lesions, . . . like healing scar-type lesions." Clea, at one time, thought that the scars might be caused by eczema that Franki was scratching.

Clea related it was difficult to get Franki to eat, and sometimes she would eat a couple of bites and resist eating anything more. Dr. Sweinhart told Clea to encourage Franki to eat healthy foods, discourage Franki from eating things like lollipops that are basically sugar, and allow Franki to eat as much of the nutritional foods as she appeared to want.

Dr. Sweinhart had "no concerns about the care, health or safety of [Franki and her siblings]," as evidenced by an April 19, 2010 letter the doctor addressed "To Whom It May Concern." Clea never disclosed to the doctor, however, that she had used hot pepper or corporal punishment with the child.

Dr. Sweinhart also saw Franki after she was hospitalized in April and removed from defendants' home. Her skin had cleared significantly. Her lip still had some deformity to it but had "significantly improved" from when the doctor first observed it. The remainder of Franki's skin had improved greatly. Some of the scars had disappeared and others had faded to the point of being almost imperceptible, though a few were slightly more noticeable. Additionally, Franki had gained a significant amount of weight, about thirteen pounds, and had grown four inches. In other words, Franki had nearly doubled her weight.

Franki's sodium level had also "normalized" and "stayed normal" as evidenced when Dr. Sweinhart last examined her a couple of months before the fact-finding hearing. Although Franki had been anemic and iron deficient on the first visit with Dr. Sweinhart, those conditions had also improved and by September 20, 2010, they were "right at the cutoff for the lower end of normal." Dr. Sweinhart had prescribed a multi-vitamin to treat Franki's anemia. The vitamin "contained additional iron over what [was] routinely given to healthy children." Other than the vitamin, Franki had received no other treatment for her failure to thrive. Because there were no metabolic reasons for Franki's failure to thrive, Dr. Sweinhart concluded that Franki had not been given appropriate oral nutrition.

Following her discharge from the hospital in April 2010, Franki had returned to Dr. Sweinhart for treatment of some minor issues. She had a recurrence of thrush, and she had been treated for some small skin issues possibly caused by MRSA, or methicillin-resistant staphylococcus aureous, a very nasty staph infection. Nevertheless, neither condition resulted in Franki losing a significant amount of weight.

Dr. Howard E. Corey, a pediatric nephrologist, had been asked to do a consultation when Franki was hospitalized in April. The doctor, who was the director of a children's kidney center at the hospital where he worked, and who had "co-authored a chapter on sodium handling in infants and fetuses" in a neonatal physiology textbook, opined that Franki's hypernatremia was due to salt poisoning.

The doctor explained that hypernatremia is an "imbalance between the water in the body and the salt or sodium in the body or a combination of the two together." Sodium, "a major electrolyte of the bloodstream," is regulated by various organs including the brain, adrenal gland, and kidneys, all of which "cooperate together to maintain sodium in a very specific range." If the level of sodium in the blood gets too high, it can have a devastating impact; it can cause convulsions or death.

When Franki was admitted to the hospital on April 15, the sodium level in her blood was measured at 195, in units known as millimolars. That level of sodium in one's blood can cause a brain hemorrhage or convulsions, and it "can be associated with death." Dr. Corey characterized a blood sodium level of 195 as "extremely rare." Franki's reported blood sodium level of 195 was one of the fewer reports, globally, of such a high level. According to the doctor, a blood sodium level of 195 "would indicate that there's a very profound disturbance taking place in the body."

Dr. Corey testified that the most common cause of hypernatremia is water loss. Vomiting and diarrhea are, worldwide, the most common causes of water loss resulting in hypernatremia "by far." There are other causes, such as diabetes insipidus, a condition in which the kidney is unable to extract water. In addition to water loss, hypernatremia can be caused by salt gain. A third cause would be a combination of water loss and salt gain. Based on medical tests and Franki's urine patterns, about which the doctor provided lengthy and detailed explanations, he ruled out water loss as the cause of her hypernatremia. Rather, he concluded that the condition was caused by an excessive salt load.

Dr. Corey disagreed with a report authored by defendants' expert, Kenneth V. Lieberman, a pediatric nephrologist, who concluded that Franki's hypernatremia was due to water loss, not an excessive salt load. The doctors disagreed about the interpretation and significance of Franki's medical test data, Franki's urine patterns, and about what theories the medical literature supported or did not support.

Following Franki's diagnosis of hypernatremia, medical personnel initially treated her with "intravenous water with some salt in it but far less than would cause the hypernatremia in order to bring the plasma sodium gradually down to normal and then basically just a regular diet." Within forty-eight hours of the introduction of the water sodium solution, Franki's blood sodium levels returned to normal. When Dr. Corey visited Franki following the treatment, Franki "seemed to be thriving." The child was eating well, drinking normally, and appeared to be much perkier and happier. She was "doing quite well."

Dr. Corey saw Franki once after the child had been discharged from the hospital. At that time, Franki had gained weight and "appeared altogether like a different child." Franki's sodium was completely normal, as it had been on the several occasions it was measured following the child's discharge from the hospital.

To refute the testimony of the Division's medical experts, defendants presented the testimony of Dr. Lieberman, and Dr. Jerome David Goodman, an expert in the field of psychiatry and child psychiatry.

Dr. Lieberman was, when he testified, a professor of pediatrics at the University of Medicine and Dentistry of New Jersey and chief of pediatric nephrology at the children's hospital of the Hackensack University Medical Center. He had been involved with editing a medical journal for a number of years, and was a reviewer for another journal. In Dr. Lieberman's opinion, Franki's medical records "did not support the diagnosis of intentional salt poisoning as a significant contributor to [the child's] hypernatremia that was noted on [Franki's] arrival in the emergency room and dealt with subsequently" during her hospitalization in April 2010. Rather, Dr. Lieberman concluded that Franki was extremely dehydrated when she first presented to the emergency room. Franki had "a poor intake of fluids leading up to that hospitalization," and had experienced "febrile episodes at home." The "deficiency of fluid intake and increased fluid loss due to the febrile illness" were the major contributors, or major factors, in the development of Franki's hypernatremia.

Like Dr. Corey, Dr. Lieberman explained at length the complex medical considerations involving Franki's condition. He explained the significance of various tests and concentrations of substances in Franki's blood and urine upon her hospital admission, and he cited medical literature that had not been cited by Dr. Corey. Based on his interpretations of medical records and available data, Dr. Lieberman opined that it was not possible to say within a reasonable degree of medical certainty that Franki was salt poisoned.

Dr. Goodman, the defendants' expert in psychiatry and child psychiatry, reviewed available records in the case and the CEC report. He also interviewed Jay and Clea. Having considered Clea's background and the context of her use of physical discipline, Dr. Goodman concluded that "the charge of physical abuse can only be valid if the physical discipline results in long-lasting and approaching permanent damage, and there was none of this except those that were concocted to create this original complaint." Nothing in the doctor's interview with Clea revealed anything regarding abusive behavior on her part. To the contrary, "this was a woman who wanted to be very close with her children; in fact, that's home-schooled her children and was interested in their moral development as well."

The doctor explained that Clea had "ever[y] advantage of understanding and devotion that any other mother could have." He had no reason at all to believe that she was an unfit parent or that she was a danger to her children. The doctor further concluded from his mental status examination of Clea that she was unusually candid. Clea demonstrated no indication of psychopathology.

Dr. Goodman was critical of the CEC forensic assessment. He told the judge that the social workers who had participated in the assessment apparently did not "believe their own tests of parenting abilities" because Clea had "scored quite well as far as her candidacy for child abuse was concerned." The scores demonstrated that Clea's candidacy for child abuse was "minimal to none." He opined that the willingness of the social workers to administer a test, then disregard the results, reflected "their interest to continue to please [the Division] whether it's the truth or not." Dr. Goodman did not believe Clea's CEC assessment was supported by clinical data. This was particularly so because Clea scored quite well on the parenting inventory and "her test scores for child abuse potential did not indicate a potential for child abuse."

Dr. Goodman found Jay to be a man of integrity and intelligence and a person who is "detail oriented." The doctor concluded that Jay's judgment was sound and that "his intellect and methodical means of investigation is the defining aspect of his personality." In the doctor's opinion, Jay "was able to choose a course for [his children] that was realistic and . . . he was able to parent well and he was someone who was equally devoted to the children as his wife."

Jay was candid throughout the interview and gave Dr. Goodman no reason to believe that he was an unfit parent or a danger to his children. When interviewing Jay, the doctor paid particular attention to whether Jay had many rationalizations or excuses for his behavior; he did not. Jay was free from any definable psychiatric disorder.

Dr. Goodman again criticized the 101-page CEC report and said it was "not clinically responsible." It "did not discuss anything [that] related to components that make up personality." Rather, it was a discussion of alleged history; an interview, not an examination. The doctor testified about specific instances of the CEC report where comments and conclusions of the authors were at odds with the psychological testing.

The doctor was particularly critical of the CEC report's emphasis of certain aspects of the case, such as Franki's salt poisoning and preliminary information about Franki's suspected fractures, which turned out to be incorrect. In response to a request from the Division, a specialist at Nemours Children's Clinic at Alfred I. DuPont Hospital for Children had reviewed Franki's medical records and radiographic films. The specialist had informed the Division that the original interpreting radiologist's description of a possible cranial fracture was incorrect. The specialist explained that Franki's cranial "metopic suture" was incompletely fused, a condition that had nothing to do with trauma.

The specialist also explained that the suspected wrist fractures were "an illusion created by the pronated position of the forearm and the presence of an arm board." And though Franki had two old healed fractures of the left humerus, it was possible that they "may have occurred in or around the time of birth or in the later post neonatal period." In short, the specialist reported to the Division that "there is insufficient x-ray evidence to prove that the injuries found are the result of non-accidental trauma."

Dr. Goodman stated that "if there was a reporter from a paper here, this could be a Pulitzer Prize of misappropriation of state funds and the malpractice of the units who so conducted the whole investigation." The doctor insinuated that if the "CEC people" were candid, they would have supplemented their report when they received information that showed some preliminary information about Franki was wrong. The doctor also pointed out that the qualifications of the individuals who were involved in creating the CEC report were "the lowest level of a mental health professional . . . some of them had an LCSW but the others had just an MSW which is not in the clinical spectrum at all." He opined that if non-psychiatrists or non-psychologists conduct interviews such as those conducted by the CEC social workers in this case, there is a major danger that they will come to erroneous conclusions. Dr. Goodman felt that happened here.

There were certain facts Dr. Goodman had been unaware of before he testified. He did not know what a "pop-pop" was and he did not know that defendants used corporal punishment if Franki refused to eat. Dr. Goodman conceded that it would "probably not" be appropriate to hit a two-year old child for refusing to eat. Dr. Goodman did not, however, believe that physically disciplining a two-year old with a stick for failure to eat rose to the level of child abuse.

The doctor was also unaware that defendants had used crushed red pepper in an effort to get Franki to eat, and in an effort to prevent Emerson from drinking from the toilet. The doctor conceded that it was not advisable to use crushed red pepper. He also conceded that there could be negative psychological ramifications to putting children in a position of having to control their mother's behavior.

Jay and Clea testified and disputed much of what the CEC clinicians had claimed they said. Jay described each of his children and also described how he and Clea had first fostered Emerson and Franki, then adopted them. He explained that Emerson and Franki's mother had a difficult life and there had always been a suspicion that she took drugs during her pregnancies. After accepting Emerson and Franki as their foster children, he and Clea did everything possible to ensure that the children were healthy, including giving them great nutrition, feeding them, and providing appropriate medical care.

When asked to describe how he disciplined his children, Jay explained that there were different forms of discipline. He and Clea had trained their children to obey their voices. The children were certainly not spanked for every infraction. Jay and Clea developed a discipline ladder that helped not only the children, but also Jay and Clea "be accountable to what the word of God says." If a child committed an infraction, the child could look at the discipline ladder to see not only the infraction, but a corresponding biblical verse. If a child were too young to understand the discipline ladder, Jay and Clea would talk to the child to correct him or her "and at times spank when it is necessary but not all the time."

Defendants' philosophy was that "grace and mercy [are] new every morning, just like it is with God." They employed that philosophy with their children, so every day the children started at the top level of the ladder, that is, the children had full privileges. If the children committed infractions, they would descend on the ladder and lose corresponding privileges. The goal was to stay at the top rung of the ladder throughout the day.

Jay further explained that both he and Clea were abused as children. Consequently, before marrying, they discussed the manner in which they would build up children, not tear them down, and thereby avoid repeating the errors that had been made by their parents. He and Clea were determined to bring their children "up in a nurturing admonition of the Lord." Jay then explained how they applied their disciplinary system to each of the children.

Alex, Blair, and Casey had reached a level where "they were understanding and they didn't need to be spanked." When Jay and Clea had spanked the children, it was only on the "backside," nowhere else. The maximum number of "swats" any child would get at one time would be ten. The children always had some type of clothing on when they were spanked. Jay denied that the children were ever spanked on their bare skin. And Jay and Clea only used sufficient force to create a sting, never a welt or any other injury. During a spanking, no child was ever subjected to force that caused a bruise, welt, scratch, or scar.

Jay testified that he had not spanked Emerson or Franki since returning from Iraq. They did not engage in any behavior that required spanking. He believed that Emerson and Franki were spanked only once or twice a month, and that was because they were younger and they were still learning obedience, especially obedience to their parents' voices.

While in Iraq, Jay spoke to Clea and the children daily through Skype. That is how he learned of Franki's illness and hospitalization in Indiana. When Franki experienced uncontrollable vomiting and diarrhea, Clea took Franki to the hospital. When Franki was diagnosed with hypernatremia, Jay advised Clea to take the children home, that he would return as soon as possible, and that they could discuss Franki's condition with their family doctor, Dr. Sweinhart.

When Jay returned from Iraq, Clea told him that Franki was to have a height and weight check every two weeks, her blood was to be drawn every two weeks, and that Dr. Sweinhart would establish a baseline to determine what referrals were necessary to address Jay and Clea's concerns about Franki. During that time, Franki was "eating everything that she could put in her mouth." He and Clea were also adding supplements to Franki's diet. They began feeding Franki red meat to boost her iron.

After a while, Franki stopped eating red meat. According to Jay, he and Clea began to try different methods to get Franki to eat the meat. They cut the meat into smaller pieces and they mashed it, but without much success. Then they noticed that when Franki ate pizza with crushed red pepper she chewed it and liked it, so Jay and Clea began to sprinkle a little bit of crushed red pepper on her meat. The first time, Franki actually chewed up the meat and ate it. For that reason, Jay and Clea "did [it] a couple more times." But Jay did not think Franki should continue to eat meat with crushed red pepper. Jay denied that he and Clea ever used hot sauce or Tabasco sauce with Franki. He said that if Franki would not eat the meat without pepper, then he and Clea would feed her baby food. Clea bought baby food with meat in it. Franki ate the baby food on a regular basis. Jay and Clea also served Franki the foods her doctors had recommended.

During the time between Jay's return from Iraq and Franki's April 2010 hospitalization, Franki drank water, juice, and milk from a sippy cup. That stopped the week before she was hospitalized, when she would no longer drink anything from the cup.

Franki also stopped eating the week before her hospitalization. Jay thought she might be sick. He initially thought that whatever had caused her illness in Indiana three months earlier might be affecting her again, but Franki was not vomiting and she did not have diarrhea. Franki spiked a fever and defendants gave her Motrin. It appeared to have no effect. Franki was becoming lethargic, eating and drinking only in small quantities. Her condition worsened over the next two days and Jay thought she had the flu.

Defendants intended to take Franki to the doctor on April 15, 2010. That morning, around four or five o'clock, Jay noticed that Franki had begun to moan. During the night, Franki had run a persistent fever; her bed sheets were soaked and her diaper was pretty full. In the morning, when Franki began to moan, Jay thought she might be having a seizure. He, Clea, and the children got in the car and drove to the hospital. Jay and Clea learned that Franki again had hypernatremia.

In the hours immediately following Franki's hospitalization, Jay spoke with the doctors. Dr. Corey said that the doctors did not think Franki had diabetes insipidus. Jay asked why tests were not being done in view of Franki's urinating "over and above what you are giving her in the IV which should show that there is something going wrong with her[.]" Jay asked if the doctor was going to "at least look and try to determine what's going on with her before you all just go down this road of abuse[.]"

Jay was later evaluated at the CEC. He thought he was undergoing a psychological exam. He was told by Heather Diamond that he could not take notes. Further, had Jay known the assessment was a "forensic" assessment, he would have requested that an attorney be present. That would have especially been the case had he known that his statements would be used against him in court. Jay flatly denied that the CEC evaluation was accurate. He also made clear that he had no chance to review the statements attributable to him before the forensic assessment was written. In fact, Jay thought the authors of the report had lied.

Jay characterized the report as a gross misrepresentation of what he said, "especially the intent and the content of the statements that [he] made." He claimed there were words omitted and words inserted to make it appear that he said nothing in between certain statements.

Jay went through the report and pointed out inaccuracies. Based on the inaccuracies concerning what he said, Jay did not "lend any credibility to anything that's in this report especially not from my children . . . because I know my words are inaccurately reflected here. So I would expect that my children's words were definitely inaccurate[.]"

As an example of an inaccuracy, Jay pointed to the paragraph in the report that stated he and Clea had disagreed about Emerson doing pushups. Jay characterized that as a "total fabrication because [Emerson] never did any grass drills or pushups." He also characterized as a total misrepresentation that he shared Alex's concerns about Clea over-disciplining the children. And he denied ever asking Alex to monitor Clea's discipline of the other children. He explained that "the reason we place a hand on the shoulder is for accountability purposes and it's not for discipline. It's for the tone of voice that one is using when they're talking to someone."

According to Jay, Clea had tone deafness or loss of hearing. Consequently, she tended to be louder than other people, so what she says can be perceived as too authoritative. A child would put a hand on Clea's shoulder if the child thought Clea's tone of voice was not appropriate in the situation. More importantly, the technique was not used solely with Clea. It was used with Jay as well, as with all the children. Jay adamantly denied he ever told Diamond that the technique was used when someone was out of control. Jay also denied ever being concerned that Clea might abuse the children when he was away from his family.

Jay explained that when he spoke to Diamond about training his children, he was referring to training them in the "fear and admonition of God or the nurturing admonition of God." In other words, he was talking generally about raising children, which includes setting boundaries so that they know right from wrong. Jay emphasized that when he talked about training he was referring to rearing a child, especially with a biblical world view; he was not referring to discipline.

Jay said he may have given Franki "a couple of swats for spitting food out, but that's all[.]" He admitted using Tabasco sauce, but only to keep Emerson from drinking out of the toilet and other places. He claimed the clinician who had prepared the CEC report "lumped [Emerson] and [Franki] together using pepper and [T]abasco sauce[.]"

Jay described Clea as very beautiful, strong, and intelligent. He also testified that Clea was very good at raising and caring for children.

Between April 2010 when the Division removed the children, and January 2011 when Jay testified at the fact-finding hearing, he and Clea had regularly visited with the children. Jay noticed that Franki "repeatedly . . . continue[d] to get skin marks, little lesions and bumps all over her body, rashes." The previous week she had little red bumps around her mouth. She had had a yeast infection, a white tongue, and thrush "over and over again."

In addition, Jay had consistently observed bruises on Emerson. Two weeks earlier, Emerson had appeared at a visit with a black eye. During several visits, Emerson had appeared with scratches and bruises on her face.

Clea, whose testimony covered the same topics as Jay's, explained how she and Jay had come to adopt Emerson and Franki. Their mother, who was also Clea's cousin, came to live with them when she was eight years old, having recently lost her own mother. Years later, Clea's cousin gave birth to Emerson and Franki. Their mother is small, under five feet, and she has a very slender frame. When she became pregnant with Emerson, she weighed approximately 115 pounds.

Clea and Jay's adopted son passed away in May 2008, a month before a hearing concerning Clea's cousin's parental rights to Emerson and Franki. After laying to rest their adopted son, Clea and Jay traveled to Indiana where Clea's cousin consented to their adoption of her children. A month later, defendants took Emerson and Franki into resource care. When she returned to New Jersey with the children, Clea notified the Division. Clea immediately attended to the medical needs of Emerson and Franki.

In 2009, when Franki was a year old, Clea became concerned when Franki developed bumps on her body. Clea also became concerned that Franki was not growing at a normal rate. When she discussed her concerns with the family pediatrician, he began to do blood work. The pediatrician expressed concern that Franki's thyroid levels were high. He diagnosed the child with hypothyroidism. Nevertheless, Franki as well as Emerson were happy, healthy children. Clea and Jay adopted them in July 2009.

Jay deployed to Iraq in August 2009. From then until late November, when Clea and the children visited relatives in Indiana, Franki received early intervention services from the State. Franki's verbalization was not at the appropriate level for a child her age. The developmental intervention took place at Clea's home, in Franki's bedroom. The person who did the intervention was able to observe not only Franki, but also the other children.

In November 2009, Clea took the children to Indiana to visit relatives. While in Indiana, Franki was hospitalized. According to Clea, the doctors first treated Franki with IV solutions and antibiotics because she was lethargic and dehydrated due to vomiting and diarrhea. Blood work disclosed that Franki's sodium level was high. She had a high fever. The doctors treated her in the pediatric intensive care unit for two or three days before moving her into a "regular room." The doctors then discovered that Franki had a yeast infection in her mouth, which they began to treat. The doctors did not, however, perform any surgery on Franki's lip. Franki's "oral ulceration" was found three days after she was admitted to the hospital. Upon Franki's discharge, a doctor from the hospital contacted her pediatrician in New Jersey and the two discussed follow-up treatment for Franki.

Upon returning to New Jersey, Clea took Franki to see Dr. Sweinhart. Dr. Sweinhart ordered blood testing to create a baseline for Franki to assess her medical needs. Clea returned monthly, and Dr. Sweinhart was pleased with Franki's weight gain.

Between Franki's March and April visits with the pediatrician, the doctor telephoned Clea to "ensure that [Franki] was getting additional green leafy vegetables and -- red meats." During the April visit, Clea learned that Franki had gained no additional weight. Nevertheless, Dr. Sweinhart was pleased because Franki had grown more than an inch.

Clea reiterated that Franki had been seen by an early intervention services provider from August through November 2009; by medical personnel in an Indiana hospital for approximately four days in January 2010; and by Dr. Sweinhart from February through April 2010. After detailing how she arranged for Franki's medical care, Clea explained her philosophy about raising children.

Clea essentially mirrored what Jay had said, emphasizing that they raised their children "with the [b]iblical world view." Thus, the Bible was "the basis for pretty much everything" they tried to establish in their lives, including morals and values. Clea emphasized, however, that honor was the driving force in their home. Honor means "treating everyone as special, having a good attitude, and doing more than what's expected." Everyone was held accountable for their actions, as well as learning godly character and carrying out family life.

Recounting the events leading to Franki's April 2010 hospitalization, Clea explained that the child had taken ill before her scheduled April visit with Dr. Sweinhart. Franki spiked a fever and "just stopped drinking and eating as much as normal." Clea became particularly concerned two days before Franki was hospitalized because Franki stopped wanting to eat meat and chew well. The day before her hospitalization, Franki woke up and played normally. During the afternoon, after she had napped, she seemed excessively tired and was running a fever. Clea began giving Franki Motrin, then alternated between Motrin and Tylenol to help control Franki's fever. The morning of the 15th, Franki woke up moaning. When Clea turned the lights on it appeared that Franki was having a seizure. Clea and Jay drove Franki to the hospital. Following Franki's hospitalization, the Division removed the children.

Clea disputed the allegations that she had abused the other children. She said she gave Emerson hot sauce to deter the child from drinking from the toilet. She denied feeding her children crushed red pepper or using that as a form of discipline. Rather, she put red pepper on Franki's meat to get the child to chew it. She also gave crushed red pepper to Emerson before using hot sauce to deter Emerson from drinking from the toilet.

Like Jay, Clea disputed the accuracy of the CEC evaluation. She said it was obvious that the examiner's questions more closely resembled an interrogation than a psychological evaluation. Clea pointed out numerous inaccuracies in the report, including inaccuracies about events that occurred in other states where Jay had been stationed, such as Oklahoma, and in Indiana where Franki had been hospitalized. Clea claimed her interviewer cut off statements she made about her deceased child. Clea emphatically disputed that she had referred to her "anger" and had described herself as being forceful and dominating. To the contrary, Clea had told her interviewer she had grown up around dominating and domineering women, "and those were definite character qualities that I did not want to have." Clea had worked very hard to ensure that she was respectful to her husband and children.

Clea also accused the interviewer of misquoting her about support groups. According to Clea, she told the CEC interviewer that she, Clea, did "a Bible study on the fruit of the spirit" and worked on patience; not because of an anger management problem, but because she wanted to be proactive as to qualities that she could improve in herself and her children. Her own accountability with different "sisters in Christ and prayer partners" was in large part to obtain an "outside perspective." Clea herself did the same thing for others. She analogized the situation to Weight Watchers, where people had accountability but also had a support group to assist with one's progress. Clea testified that "with my church family, with our home schooling family, with my family of origin, we have a vast support system and we hold each other accountable in every regard."

Clea explained that the CEC interviewer would often ask her about statements the children had allegedly made about her. Clea did not believe the children would make such statements. She adamantly denied that the CEC interviewer had accurately written her responses to questions. For example, Clea explained that in terms of spanking, she and Jay would not use words like "hit my child." Clea claimed the interviewers used terms like that often, both in the interviews and in the fact-finding presentation, but she would never use such a phrase. The term "hit," according to Clea, denoted someone angrily trying to harm someone else. She disciplined her children out of love, not anger, and would never refer to her and Jay's discipline as "I hit my child, in any way, shape or form." Clea characterized the entire report as being "written in that way." She repeatedly stated that the CEC interviewers would not let her document the interviews on a computer or with pencil and paper.

Clea confirmed what Jay had said about Emerson and Franki's appearances when they visited the children after April 2010.

To corroborate their testimony, Jay and Clea presented the testimony of the children's great aunt, who was the resource parent for Blair and Casey, Jay's brother, and a school principal. Both relatives had spent time with the family, and Jay's brother had lived with them for a while in late 2009 through early 2010. The children's aunt testified that during her visits, which occurred at least twice each month, she saw no indication that defendants abused or neglected their children. To the contrary, she was impressed about how well the children responded when the parents told them to do or not to do things. Similarly, Jay's brother, who was aware that defendants spanked their children, observed no punishments himself. The principal of a school that Alex, Blair, and Casey attended testified that the children were all physically healthy while they were enrolled there.

After considering the foregoing evidence and deciding which witnesses were more believable, the Family Part judge found that defendants had abused or neglected their children. The judge determined that Jay and Clea had inflicted excessive corporal punishment on the two youngest children, Emerson and Franki. The court also found that by exposing their three older children, Alex, Blair, and Casey, to the excessive corporal punishment of Emerson and Franki, defendants had instilled in the older children a fear and tolerance of violence that was abusive.

The judge did not enter an order memorializing his oral decision. Two months later, on October 19, 2011, another Family Part judge entered an order terminating the Title 9 abuse or neglect litigation because the Division had filed a complaint for termination of parental rights. Defendants have appealed the fact-finding decision and the order.

C. The Guardianship Trial.

At the guardianship trial the Division presented much of the same evidence it had presented at the fact-finding hearing to establish that defendants had endangered the safety, health, and development of their children. Specifically, the Division presented the testimony of its permanency worker, Sabrina Passucci, the CEC social worker, Heather Diamond, and the two doctors who had previously testified, Agrawal and Corey. Defendants presented the testimony of Drs. Lieberman, Goodman, and Sweinhart. They also presented the testimony of a new expert, William D. Campagna, Ph.D., who had not appeared at the fact-finding hearing. The witnesses on both sides testified, for the most part, to substantially the same facts and opinions they had addressed at the fact-finding hearing.

Heather Diamond had re-interviewed Jay after the fact-finding hearing, and the court permitted her to give an opinion that the children should not be returned to him because "he was still viewed as high risk for child abuse and neglect as well as failing to protect his children." Dr. Goodman again criticized the CEC report in its entirety and opined that it "should not carry much weight as far as fact-finding or clinical observation is concerned." Contrary to Diamond's opinion, Dr. Goodman testified that defendants were devoted parents who had attended services such as family counseling and parental guidance, and were perfectly capable of parenting their children. Dr. Goodman "could say . . . with certainty" that Clea was able to change, and she had assured him that she would. Jay had always been flexible with his parenting style.

In addition, the Division developed the following proofs. Case manager Damian Johnson, who had been assigned to the case in December 2011, testified that the children resided in three separate resource homes: Alex and Emerson lived together in one resource home, Blair and Casey lived together in another resource home, and Franki lived in a third resource home. Johnson explained that the Division's plan for Alex and Emerson, and for Blair and Casey, was "resource home adoption in [their] current placement[s]." As to Franki, the Division was in the process of assessing out-of-state relatives who had expressed interest in offering themselves as resources for the children. The Division had rejected the notion of placing Franki with Blair and Casey because they were living with Clea's relative who did not believe that Jay and Clea had done anything wrong. Also, Franki was the most abused child, and though the Division did not believe that Blair and Casey were in an ideal situation, they were less vulnerable than Franki.

Johnson said Alex wanted to stay with his resource parents and not return home. Alex thought nothing had changed with his parents. Alex feared for his siblings, particularly Emerson and Franki, who he believed would end up dead if returned to Jay and Clea. Johnson characterized as "nurturing" the relationship between Alex and his resource parents. Although his resource parents disciplined him when appropriate, Alex had a good relationship with them and thought they were "really supportive." In fact, Alex attributed his progress in school to his resource parents, who were "constantly on him" about completing his schoolwork and homework, and who were "more than willing to sit down with him and go over tests[] and homework."

Johnson testified that Emerson had mental disabilities, including language delays and "reactive attachment disorder." Emerson considered her resource parents' home her home. Johnson also characterized the relationship between Emerson and her resource parents as "nurturing."

Unlike Alex, Blair and Casey wanted to return to their parents. Although they enjoyed a comfortable, nurturing relationship with their caretakers, they missed their parents. Johnson believed that Casey's separation from her parents was adversely affecting her in a significant way. She particularly missed her mother, and didn't understand why she could not return home. Casey also hoped that her brothers and sisters would be returned to their parents.

Like Alex and Emerson, Franki was comfortable in her resource home, but she had behavioral issues that at times caused her resource mother to feel a bit overwhelmed. When Franki and her resource mother were out, Franki tended to "bolt at any moment." She also had temper tantrums if she did not "get what she wants." Nevertheless, Franki was "really engaging" with her resource parents and was particularly affectionate with her resource mother.

Franki's resource mother testified that when Franki was first placed with her in April 2010, she had a "hungry" appetite. Franki drank a lot of milk, ate three meals daily, and also had three snacks, which consisted of cheese, fruit, or milk. The resource mother did not consult with a dietician about what to feed Franki and no one prescribed what Franki should be fed. Yet, in contrast to Franki's weight of "just under sixteen pounds" upon discharge from the hospital, in the month the guardianship trial began, Franki weighed forty pounds.

Franki also had some eczema around her neck, in her armpits, and in the area of her shoulder blades when she first arrived. The resource mother got the eczema under control by applying different ointments, a body wash, and lotion to the affected areas. She also used Eucerin calming cream if Franki was scratching. It took approximately one month to get the eczema under control.

Megan DeOliveira, a professional counselor, had worked with Alex, Blair, and Emerson. She testified that shortly after being removed, Alex hoped his parents would understand and acknowledge what had happened so that the children could return to them. By the summer of 2010, however, he had become increasingly angry with his parents and felt they would never change. As of the time of the guardianship trial, he did not want to return home. Alex had become concerned about Blair and Casey returning to their parents, but was confident that Emerson and Franki would not be returned. Alex stopped visiting with his parents around June 2011 because he felt unsafe during the visits, and he also felt that during telephone conversations his parents were attempting to pressure him to retract what he had reported about them. They told him "that he caused all this for his family." DeOliveira testified that the lack of a permanent plan for Alex was continuing to cause emotional and behavioral instability.

DeOliveira began working with Emerson in January 2011. The counselor quickly perceived that Emerson was demonstrating "attachment issues." Only once during the time that DeOliveira worked with Emerson did Emerson mention Jay and Clea spontaneously. DeOliveira explained that in the absence of permanency Emerson would continue to have "an inability for emotional behavioral stabilization." Children without permanency are "in a state of turmoil . . . because they don't have that sense of safety and security."

DeOliveira stopped working with Blair in September 2010. Blair was more guarded than Alex. Eventually he talked about the pop-pop, the hot pepper flakes, and the hot sauce. Blair was very angry, however, about having to come to the counseling sessions. He was also upset because he had to leave school early to attend the sessions. Blair openly shared that he wanted to return home.

Michael Fiore, Ph.D., a forensic psychologist with the CEC, interviewed Clea on three occasions in March, April, and May 2012. During the interviews, Dr. Fiore questioned her extensively about the allegations that had been made against her. He also had her undergo psychological testing. From that testing, Dr. Fiore concluded that Clea had "an above level knowledge of appropriate parenting in comparison to the general adult population." Testing indicated that Clea had no child physical abuse risk. Nevertheless, Dr. Fiore did not believe the children should be returned to Clea, because he did not think "that sufficient change had been made to lower child abuse risk in this household[.]"

According to Dr. Fiore, Clea had a narcissistic personality disorder manifested by a "self-centeredness" and consequent "difficulty prioritizing other people's needs before [her] own." A person with a narcissistic personality also has a deficiency in empathy as well as a "grandiose sense of self that can be associated with a defensiveness about admitting to mistakes." Significantly, people with narcissistic personality disorders manifest "aggressive tendencies, anger management difficulties, [and] an expectation that other people are going to comply with their demands, directives, authority without having to reciprocate[.]" The consequences can be "a very rigid parent whose expectations are that the children completely comply with them, who can be aggressive with the children, and who don't [sic] become sensitive or empathetic with regard to how their children might feel with regard to how they're being treated."

Clea had denied that she had been abusive and could not recognize specific practices that were abusive, including holding Franki's mouth shut while Franki had crushed red pepper in her mouth. Clea had also denied she had been neglectful and "that there were deficits in child protection in the home." Dr. Fiore felt that Clea had not paid sufficient attention to how the children felt, to Emerson's reactive attachment disorder, and to Alex's anger and nightmares. Dr. Fiore concluded that Clea was "superficially complying with the law for now," but did not "think there's enough change for her to avoid regressing to old ways of parenting." Consequently, there would be a risk for all the children. Dr. Fiore opined that some of the children would be more vulnerable than others based on special needs, "but the risk would be the same for all of them in terms of risk factors that [Clea] produces."

Dr. Fiore felt that Alex suffered from post-traumatic stress disorder based on his nightmares about the abuse he witnessed, and his flashbacks of that abuse. According to the doctor, Alex experienced intrusive memories and "a desire to avoid anything that might trigger an association or a memory to the abuse that he experienced." The doctor testified that Alex was "haunted by the past, by what he experienced . . . , mostly by images, pictures in his mind of his sisters being hit and hot sauce being poured into their mouth. They would cry in pain and fear, and [he] would want to help them but [he] couldn't." Dr. Fiore did not believe that the report of these images and pictures was a ploy by Alex because he enjoyed living with his resource parents. Rather, Dr. Fiore believed "these symptoms are going to stay with him until he has a permanent plan, and, unfortunately, because he's rather concerned about his younger siblings, until they have a permanent plan." The plan had to include safety, because Alex was "pretty terrified . . . that he may be returned to his parents or that his siblings may be returned." The doctor concluded that Alex had developed a secure attachment to his resource parents, and that his experiences of abuse, neglect, and having witnessed the abuse of his siblings had impaired his attachment to his biological parents. Alex was not capable of coping with reunification with Jay and Clea.

Dr. Fiore believed that Emerson had made progress with her reactive attachment disorder since resource placement and "has been developing an attachment to [her resource parents] which has not generalized to [Jay and Clea]." The doctor opined that any disruption of Emerson's placement should be avoided, and that if she were separated from her resource parents, she would "regress[] in her progress with reactive attachment disorder and perhaps . . . end . . . her ability to recover and attach to someone else, including her biological parents." Because the first two years of Emerson's life had been marked by multiple resource placements and neglect, and the second two years by abuse and neglect and a failure to securely attach to defendants, "it really would be a tragic shame for her to lose the progress that she's made."

As previously noted, defendants' expert, Dr. Goodman, thought the CEC report and the opinions contained in it should carry little weight. He found the CEC psychological evaluation to be "largely reportorial, anecdotal, and definitely not clinical." Dr. Goodman further commented that the interviewers "did not surpass their limited credentials and abilities."

Alex and Emerson's resource mother, Mary, repeated her fact-finding testimony that Emerson had a bruised ear when she was removed in April 2010. Emerson told Mary and her husband that "mommy and daddy did it." Mary also discussed Emerson's indiscriminate "attachment" and neurological issues. Mary and her husband dealt with those issue by being nurturing, calm, and patient, and training her when it is appropriate and inappropriate to go up to people. As to the neurological issues, Emerson had worked closely with a therapist, her pre-school teacher, and her kindergarten teacher.

Mary also discussed Alex's initial difficulty in completing tasks, remembering things, and staying organized. They also had him see a neurologist. Nevertheless, Mary and her husband intended to adopt Alex and Emerson if defendants' parental rights were terminated.

Blair and Casey's Law Guardian presented the testimony of Gerard Figuerelli, Ph.D., a forensic psychologist who did a bonding evaluation involving Blair, Casey, their parents, and their resource parents. He characterized the bond between the children and defendants "as a fully and reciprocally bonded relationship between biological parents and children." Although the children were attached to their resource parents, Dr. Figuerelli was of the opinion that if Blair and Casey were adopted by their resource parents, and the children were prohibited from having contact with defendants, the children would suffer severe and enduring harm. Dr. Figuerelli also believed that severing the bond between the children and their parents would be traumatizing, and would place the children's psychological and emotional development at risk.

Unlike Dr. Figuerelli, the psychologist whose testimony was presented by Alex, Emerson, and Franki's Law Guardian believed that defendants' parental rights to those children should be terminated. Dr. Alice S. Nadelman conducted psychological evaluations of the three children, clinical interviews with Jay and Clea, and bonding evaluations of the children with defendants and with their resource parents. Starting with the premise that children removed by the Division should be reunited with their parents if possible, Dr. Nadelman applied criteria derived from a synthesis of research and focused on six criteria that, in simplest terms, were based on this premise: "children feel most safe and are most comfortable in the presence of their strongest attachment figures. Children move toward attachment figures when they need help or are in distress. In general they are most outgoing and explore their environments most freely when they are with their attachment figures." The doctor also based her opinion, in part, on research findings on impact of abuse and trauma on children.

Dr. Nadelman testified that Alex had neurologically-based disorders, namely central auditory processing disorder and ADHD, "that can be significantly exacerbated by emotional factors, particularly anxiety and depression." She also diagnosed Alex as having post-traumatic stress disorder. She explained that Alex "experienced . . . betrayal by his father in not being able or willing to protect the children from the increasing . . . excessive physical discipline by the mother," and that the perceived betrayal "was profoundly damaging and . . . disillusioning to Alex."

Dr. Nadelman also believed Emerson to be a special needs child because she "has more significant psychological problems than Alex." Emerson had been diagnosed with reactive attachment disorder as well as developmental language disorder. "Her primary areas of problem are in impulse control, emotional regulation, attention, and focus, and interpersonal relatedness." Emerson's reactive attachment disorder has, however, significantly improved and Emerson has displayed a clearly developing attachment to her resource mother.

In the doctor's opinion, Emerson "will remain too scared to cry and to talk openly until she knows that she will never have to live with her past abusers." That is because Emerson's first two years of life were traumatic; "[s]he was in multiple placements with her biological mother, and had below-acceptable care." Dr. Nadelman defined a traumatized child as one who has had a "non-normative experience that has produced a reaction in the child such that it significantly interferes with their [sic] ability to function."

Emerson was traumatized during her first two years of life and, consequently, was exhibiting developmental problems. The first thing the child had to experience when placed with defendants, to begin the healing process, was that she was safe, would not be hurt, and that her needs would be met. Anything that counteracted those needs, especially physical pain, severe punishment, and anything else that worked against "need-meeting, nurturing and protection," would further damage an already damaged child. The doctor testified, "that's what happened clearly to [Emerson]."

Dr. Nadelman also characterized Franki as a special needs child. The doctor pointed out that when first placed with defendants at three months of age, Franki "weighed seven pounds and was described as a healthy, gurgling, babbling child with no concerns." Approximately two years later, when placed in April 2010, she had not gained weight in over one year, and had numerous medical symptoms. When removed from defendants' home, however, she began to grow and develop with no special accommodations. Contrasts in Franki's health, growth, and development were psychologically significant. Franki's situation confirmed that if a child is provided with nurturing, protection, and need-meeting, the child can begin to heal. Children who have been traumatized or damaged, however, cannot be hit, frightened, or terrorized "to the point that their entire body breaks down and they're not growing[,] . . . learning[,] . . . and developing normally because their needs aren't being met and they're not safe."

Dr. Nadelman testified that the "psychiatric establishment" has now gained full acceptance of the concept that "attachment is an essential part of ego development, that the need for attachment is as instinctive as what Freud called the id need for pleasure and gratification, and that attachment and trust are essential building blocks of the foundation of healthy development." Without them, a "child will not thrive, will not grow, and . . . could even die, even when their physical needs for food and clothing and a roof over their head are being met." In Dr. Nadelman's opinion, Franki could not be returned to her adoptive parents. The risk was too great "that being returned to the environment and the people where she suffered and did not grow and was so sick for her entire life would re-traumatize her, that that would be a very, very damaging option for [Franki]."

The doctor thought it unfortunate that Franki's current resource parents were not in a position to provide her with permanence. In the doctor's assessment, in the context of Franki's impaired attachment, her greatest connections were with her resource mother and her sister, Emerson. Dr. Nadelman felt that preserving those attachments was essential for Franki to continue making progress. The doctor pointed out that the person Franki "trusts the most in her life is her resource mother." Franki's resource mother was "the mommy who did not hurt her, did not hit her, who did not have all these terrible issues with eating and food and punishment"; the person who cared for her, met her needs, and kept her safe. Consequently, it was critical for the resource mother to facilitate Franki's transition to a permanent family. The doctor also felt that continued contact between Franki and her sister, Emerson, "would be particularly important."

Additionally, the doctor felt that, if possible, all of the bonds among the children should be maintained. This was particularly so with Alex and Blair. Nevertheless, the doctor stressed that "these relationships cannot and should not be maintained at the expense of safety and protection and nurturing."

According to Dr. Nadelman, nothing would support the conclusion that Alex, Emerson, or Franki would be safe if reunited with defendants. Dr. Nadelman explained that these children "were significantly traumatized in the years that they lived with [defendants]." When children experience such pain and suffering, the individuals who inflicted it become post-traumatic triggers. In order for such a situation to be resolved, the people who inflicted the pain have to take full responsibility and have to experience remorse for what they have done. They also "have to develop empathy for what it meant to the children on whom the pain was inflicted." The doctor saw no data that would indicate defendants "were at that place." Significantly, Alex had made it very clear that it would destroy him emotionally if he had to return to his parents who abused him and his siblings. Alex once said that if returning to defendants was his only option, he would harm himself rather than have that happen.

Dr. Nadelman was particularly concerned about Clea, who she described as narcissistic. The doctor explained that when the children were in defendants' care, Clea made no response when they did something positive. The doctor also observed that, when Franki fell, Jay went to her, not Clea. That was a pattern the doctor discerned. The doctor felt very strongly that Alex, Emerson, and Franki should not be returned to defendants.

Defendants' expert, Dr. Campagna, a clinical psychologist, disagreed with the opinions of the Division's expert and the Law Guardian's expert concerning Alex, Emerson, and Franki. Among his many credentials and accomplishments, Dr. Campagna has been Adjunct Assistant Professor in New York Institute of Technology's undergraduate program and St. John's University's graduate program. By the time he testified at the guardianship trial, he had received more than 350 court appointments to serve as an impartial psychological examiner in Family Part cases. Currently, the majority of the doctor's practice involves interviewing children; his entire practice is dedicated to doing Family Part evaluations, and he believes that most Family Part cases involve children.

Dr. Campagna interviewed Jay and Clea, either together or separately, for a total of eighteen hours. Twice he attended family visits: once with defendants and all of the children except Alex; and the second with defendants, Blair, and Casey at the resource home of those children. The doctor also interviewed Alex twice: once by himself and once with his resource parents. Each session lasted one and one-half hours. According to the doctor's report, his many attempts to further interview Alex and Emerson were unsuccessful because "either no response was received from [the Division] or one or the other child was not produced for the interview opportunity." The doctor was also prohibited from administering objective psychological testing for Alex. The doctor did administer psychological tests to Jay and Clea.

In conducting the evaluation, Dr. Campagna's objective was to "conduct[] a dispassionate analysis of the clinical data in order to assist the Court in determining an appropriate disposition of the case pursuant to the applicable statute." Dr. Campagna was critical of the CEC report because the procedures were, in Dr. Campagna's words, "clinically . . . egregious." The doctor explained:

To permit individuals with clinical limited training to conduct a clinical evaluation of this weight involving a situation where children and parents could be terminated or separated in this particular case term separated indefinitely, certainly is not consistent with ethical guidelines, is not consistent with clinical guidelines.

 

The doctor found the procedures "unethical within the confines of what it means to be a psychologist." He further found that it would be inappropriate to rely on the July 20, 2010 CEC report, "clinically speaking." The doctor explained the many problems with the CEC report, including "individuals performing tasks like psychological testing for which they are not qualified."

During the many hours that Dr. Campagna interviewed Clea, he found her to be cooperative, open, and very forthright. She never prevaricated or paused. Rather, she immediately answered questions in a forceful and direct manner. These characteristics were indicative of Clea's behavioral style, which was significant to the doctor. He "found the most critical issue in this case, [was] to develop an understanding . . . from her perspective [of] what she did[,] . . . and . . . her intentions and thoughts about what she did." In view of the nature of the proceeding terminating parental rights Dr. Campagna discussed at great length the development of Jay and Clea's thinking concerning "several problematic disciplinary techniques."

The doctor explained that, in his opinion, physical punishment "is always inappropriate, never warranted, never appropriate and it never works." But he needed to understand defendants' perceptions. Defendants saw physical punishment as an effective behavior modification technique. They never used their hand, because that was only to show love. Rather, they were taught "that it's better to utilize an instrument, a special instrument that s only utilized for that purpose so the child doesn't become anxious or upset."

According to the doctor, Jay and Clea also believed "that at the age of twelve, because of biblical injunction . . ., you become a man," at which age "it is never appropriate to strike children." That is why Alex was not physically disciplined after his twelfth birthday. He was told "that's now a matter between him and God."

During the interviews, Clea told the doctor that she had "developed a number of her theories . . . when she was a student teacher, worked at a Christian school that utilized corporal punishment as an acceptable behavior modifier." As time went by, she developed a behavior modification chart or schedule that listed "positive behaviors and rewards, and problematic or disciplinary infractions and punishments." From a psychological perspective, the chart was "pretty good" except that it utilized corporal punishment which, according to the doctor, was always inappropriate and ineffective. Also, each behavior identified on the chart had a corresponding scriptural quotation.

By the time Dr. Campagna interviewed Jay and Clea "they evinced a considerably more developed concept of discipline." They were not willing to use corporal punishment anymore, and, though they were "not very psychologically oriented individuals," they were able to demonstrate insight into why corporal punishment is inappropriate, especially with younger children. Particularly significant was that Jay and Clea were able to acknowledge they were wrong. They said it and they wept. Dr. Campagna repeatedly questioned them about the issue, and they gave a consistent position each time, without wavering. Dr. Campagna believed "that they got it." The doctor was convinced that Jay and Clea were not simply saying they would refrain from corporal punishment to avoid getting into trouble or because the Division would respond adversely, but rather because it was inappropriate.

Dr. Campagna next examined in great detail why defendants used hot sauce. He explained that when Emerson came into their household, "she exhibited massive development delay." She was "extremely attentionally impaired and had both an expressive and receptive language disorder." Such attentional deficits make children impulsive, hard to structure, and inattentive, so they don't learn. Verbally and linguistically, such a child is impaired not only in his or her ability to express, but also to receive. Consequently, "trying to structure a child with this configuration is in all fairness not easy."

In Emerson's case, her developmental delays manifested themselves in generalized behavior such as eating too much, being impulsive, running around, and, perhaps most dramatic, drinking out of the toilet. According to defendants, Emerson had learned that behavior when she stayed with a friend on vacation and Emerson mimicked the friend's dog who drank from the toilet bowl.

Clea had learned in school that one technique to discourage children from putting dangerous things in their mouths is "to give them a bad taste in their mouth" and associate it with the negative behavior. According to the doctor, although Clea's theory was "absolutely accurate," she did not execute it correctly.

The doctor also questioned Clea about using crushed red pepper with Franki. According to Clea, Franki once ate a slice of Clea's pizza after Clea had put crushed red pepper on it. Franki seemed to like it, so Clea began putting it on Franki's meat to induce her to chew and swallow the meat. Clea denied there was any punishment involved. After a few times, Clea stopped and switched to baby food "after having discussed it with her pediatrician."

The psychological testing that the doctor administered to Clea and Jay disclosed that they fit a personality profile of extremely disciplined individuals who maintained highly regulated, structured lives, and who tended to be "perfectionistic with both decision making and completing a task." Further, such individuals "exhibit unusual adherence to social conventions and proprieties, scrupulous and over-conscientious about matters of morality and ethics." According to Dr. Campagna, these personality traits are the opposite of the personality trait known as narcissism. For those reasons, Dr. Campagna disagreed with the notion that Clea had a narcissistic personality disorder. That conclusion, according to the doctor, was totally contra-indicated by the psychological testing "[n]ot even a little bit; absolutely." The doctor explained that "[c]ompulsive individuals don't have an inflated sense of their own self-worth as narcissistic people do." Rather, compulsive individuals "have an inflated sense of the authority figure's self-worth." Compulsive people "do not unilaterally do what makes them feel good"; rather, "[t]hey do what the right thing to do is."

During the interviews with Jay, the doctor found him to be deferential, cooperative, and open; he never prevaricated, and he always answered questions directly, openly, and immediately. In general, when it came to disciplinary matters, Jay deferred to Clea as the more knowledgeable individual.

Dr. Campagna characterized Jay's behavioral style with the children as "extraordinary." The doctor explained that when he had observed Jay with the children, Jay was very good at simultaneously engaging four children of very different ages. He was also very good at redirecting his attention so that he was not ignoring some of the children, and he was able to handle Emerson and Franki, who were not easy.

Dr. Campagna did not find it particularly significant that Jay and Clea would not come out and say, explicitly, that they abused and neglected their children. Such an explicit acknowledgment was not terribly important provided Jay and Clea recognized that their underlying predicate behavior was inappropriate, were able to state why it was inappropriate, and were able to demonstrate not only a willingness to change, but a substantiated change. The doctor commented: "[i]n a case like this, clearly, there's an appeal going on and so forth, basically, that's asking them to plead guilty. They do not feel guilty, so I'm assuming they do not utilize those terms." Dr. Campagna felt such terms "are arcane in this case because they have no psychological meaning." Much more important was the fact that Jay and Clea repeatedly recognized their flaws and faults.

Dr. Campagna interviewed Alex and found him to be "absolutely extraordinarily adept at . . . surveying the conversational landscape." Alex was, according to the doctor, "absolutely the most adept conversationalist for his age I have ever met." Alex reported that he had been repeatedly beaten, not in anger, but in a calm way, and that the other children had been beaten as well, particularly Franki. Based on Dr. Campagna's review of records, he believed Alex's attitude had clearly changed from "the initial event in 2010." Alex's descriptions had gotten markedly more intense; in his initial interview with the prosecutor, he had not described pervasive abuse. He had also informed a judge that his parents were okay, though he wanted to stay with his resource parents. Dr. Campagna testified that "there's no question that there is a clear progression . . . in [Alex's] overall attitude, the intensity of his statements, and his willingness to engage with his parents." The doctor opined

that such a progression is a hallmark of parental alienation which is a phenomenon frequently seen in divorce cases in which a child is drawn to one or the other side in the dispute and reinforced, in some ways suborned, presented with inappropriate material, the other party is in some way negated, criticized, villified, but most of all, the child is empowered.

 

In the doctor's opinion, "the system is alienating." Dr. Campagna explained that Alex "is clearly a function, a creature of the system." The doctor explained:

He says himself, [Alex], where did you get this information that your parents are under investigation, that they refused an autopsy, that they re trying to cover up murder; the workers told me. [Alex], where did you find out that . . . your parents, you know, aren't going to therapy or are refusing treatment; the workers.

The doctor believed that had family therapy been utilized "early on" it would have been very helpful in stalling Alex's parental alienation.

Dr. Campagna found nothing in any record that would support a diagnosis for Alex of post-traumatic stress disorder. The doctor cautioned that "what we must avoid doing is attempting to utilize diagnoses which sound very official and meaningful to support a position." Dr. Campagna believed it would be inappropriate to posit that Alex suffered from post-traumatic stress disorder "and that proves that he was horribly treated by his family. It doesn't." Additionally, "the symptomatology that is alleged for [Alex] is eminently better explained in other ways."

During one interview with Alex, Alex brought up the family disciplinary chart and then "explained it in a way that was completely at odds with the way [the doctor] had read it." Dr. Campagna had the chart, and when he displayed it, Alex's face fell. Alex "immediately had to regroup his explanation" because what he had explained was unsupported by the chart. He had claimed that there were no rewards on the chart, that no one ever got rewards, and that it was basically a beating chart.

The significance of Alex's parental alienation, according to Dr. Campagna, "would affect an analysis of his statements regarding historical events." The doctor explained that children who are alienated will frequently "drop bombs," that is, mention very extreme things, and if the examiner doesn't respond, the children will drop another bomb, a worse thing. The doctor said Alex "did that." In other words, Alex was attempting to break the bonds with his parents by throwing verbal bombs. Dr. Campagna repeated that Alex's behavior was textbook parental alienation.

The doctor further explained that because Alex had been empowered, his statements were fueling litigation and people's perceptions of Jay and Clea. The doctor was concerned that Alex's exaggerated, embellished, or overly dramatic statements were being accepted as true without corroboration, a situation "that's a problem . . . in a competent forensic examination." The doctor questioned Alex about his statement that if he had to return to his parents, he would kill himself. When Alex explained, the way he phrased it led Dr. Campagna to believe Alex was not suicidal, that this was another instance of Alex being dramatic, that Alex was being manipulative, and that crediting the statement was simply continuing to empower Alex, which was not in his best interest.

The doctor confirmed that Blair was happy in his parents' presence and sought their approval, especially his father's. Blair clearly wanted to return home. Casey, as well, wanted to go home. She was "very identified with her mother."

Although Dr. Campagna's ability to meet with Emerson as many times as he thought necessary was frustrated, he believed he had sufficient clinical data to render opinions about her, as well as Franki. As to Emerson, he saw no evidence of trauma. In other words, it had not been determined "psychologically." Rather, the trauma was alleged, and that did not mean it happened. Dr. Campagna acknowledged that Emerson had improved tremendously, but explained that developmentally delayed children, even with minimal attention, get better as they get older. Additionally, Emerson's language was improving with therapy, and she was in a structured school program. Emerson required a structured program, and, according to the doctor, Clea made a mistake by attempting to homeschool the child. Dr. Campagna was unable to comment on Franki's medical issues because he was not a medical expert and would never opine outside the scope of his competency.

Finally, Dr. Campagna concluded that Jay and Clea were clearly capable of altering their behavior. Not only did they verbalize their willingness to change, but they were also able to verbalize insight and understanding as to why their previous behavior was inappropriate, and they were able to reevaluate and reconsider it. In addition, because their characterologic profile predisposes them to follow accepted authority figures, they now "recognize that individuals to whom they previously attributed competency perhaps were misguided." They are now capable of employing more appropriate behavioral modification techniques.

Significantly, Jay and Clea sought out therapy on their own and were continuing to see two therapists. Those therapists gave supportive recommendations about Jay and Clea's discussion of parental behavior, disciplinary techniques, and other personal issues.

Dr. Campagna opined that Blair and Casey should be returned to their home immediately. According to the doctor, nothing in the record suggested either parent posed a danger to either child.

Dr. Campagna reached the same conclusion as to Emerson and Franki. After watching the parents interact with Emerson and Franki, the doctor found it "incomprehensible to suggest they do not have a loving, bonded relationship with their parents." And the doctor further concluded that Emerson's symptoms of reactive attachment disorder were developmental issues. The doctor did not believe that anyone would suggest that Emerson presently has the disorder.

Because Alex had been alienated from his parents, Dr. Campagna believed he needed to be reunited, but could not go home now. Consequently, if Alex were to be returned to his parents' care, it would have to be done incrementally. "It has to be a process of reunification." Terminating Jay and Clea's parental rights to Alex, however, would not be appropriate. According to the doctor, "giving into [sic] the problem is not a solution."

Jay and Clea testified about, and to a large extent consistently with, the subjects they had addressed at the fact-finding hearing. Significantly, Clea acknowledged explicitly that her discipline style was inappropriate:

I was wrong. I was very misguided and did not utilize even techniques that could have been proper in the right setting the right way. So I was definitely flawed and did not use proper judgment in utilizing techniques that I thought would be appropriate as well as I could have listened to my children better and taken a deeper look into my own personal flaws to be able to meet their needs better.

 

Clea also acknowledged that she could have had a deeper trust in the public school system to meet Emerson's needs. Clea testified that "the entire situation" had helped her look inside of herself, recognize her past mistakes, recognize that there are many other ways of doing things, and "take those things and be different from this point on." In other words, Clea believed she could take advice from psychologists and therapists, listen to her children, and come up with suitable and acceptable means to get the results that she used to think came through using spanking "or other sources." She believed she could change in a manner that would ensure her children would "grow into healthy, happy adults who are assets to society and not liabilities and . . . be fully functional."

Jay's testimony was largely consistent with that of the fact-finding hearing. Since the children had been removed, Jay and Clea had visited with them once a week. At times, defendants had to discipline them during visitation. However, Jay claimed "we have never spanked them and we will never spank our children again. We're going to do better."

Jay explained that after the Division removed his children, and he and Clea realized the Division was not going to refer them to services, they enrolled in parenting classes, "sought out true psychological evaluations," enrolled in Division-approved parenting classes, and also looked for a Division-approved counselor. As a result of those services, as well as the evaluation by Dr. Goodman, Jay and Clea determined that they "did have a parenting style that did have some positive aspects, but the negative aspect was spanking." Jay and Clea learned that they could achieve the same outcome with their children without spanking, which was unnecessary. Defendants continued with their therapy.

Like Clea, Jay acknowledged that he was wrong to spank the children. Also, like Clea, Jay insisted that they had not only demonstrated a willingness to change their approach to discipline, they had actually changed it. Jay emphasized that they had demonstrated a change through their visits and counseling. Their philosophy was that there was no such thing as bad children, only bad parents. He acknowledged that he and Clea had "done some things," including spanking and using crushed red pepper and hot sauce. They were more than willing, however, to take responsibility for doing those things, not repeat them, and be better for it because they had now learned the proper approach to disciplining children.

Defendants presented the testimony of two counselors to support their position that it was in the best interests of the children to return them. Joanne Storer, a licensed clinical social worker, first met defendants in April 2010. The Division never permitted Storer to meet the children. It was the first time in eleven years with the Family Advocate Program that Storer had not met the children of an involved family. Through trial, Storer had visited with Jay and Clea approximately thirty-five times. The never missed an appointment, each of which lasted an hour. During those visits and therapy Storer never observed any personality disorders or mental health pathologies. Specifically, she observed no evidence of a narcissistic personality disorder in Clea.

Storer opined that both Jay and Clea were capable and willing to change their parenting styles and approach to discipline. Storer found them to have been "very good parents with very good intentions." She also believed that the spanking was misguided discipline and by spending many hours on therapy and parenting classes, "they pretty much have their act together as far as discipline." Jay and Clea were quite capable of providing a safe, stable, loving, and nurturing home for their children. Storer did not believe that the Division had provided an opportunity for Jay and Clea to have family therapy. In Storer's opinion, there was no reason to believe that the family could not be safely reunified.

Anna Simon, a registered nurse and licensed counselor, counseled Jay and Clea from August 2010 through April 2012. She observed no pathologies or personality disorders in either Jay or Clea. When Jay and Clea first started receiving counseling from Simon, they wanted to work on how they could become better parents. They also sought insight into where they went wrong in terms of disciplining their children, and what they could do to improve. Over time, they realized that some of their disciplinary measures were too strict and did not help the children. They realized that not only spanking the children, but also using crushed red pepper had been inappropriate. They appeared to be remorseful. Simon believed that both Jay and Clea had demonstrated the capacity to be flexible in their parenting style and were both capable of changing the way they disciplined the children. Like Storer, Simon believed Jay and Clea should have received family therapy with the children. Simon believed that Jay and Clea were quite capable of providing their children with a safe, nurturing environment.

Defendants also presented the testimony of the principal of the school several of the children had attended. He testified about the changes in Alex's attitude and his behavioral problems in the private school he was required to attend after being removed from his parents. In addition, a family friend who had once cared for the children for six days testified that she had occasion to observe Jay and Clea with Emerson and Franki; she believed Jay and Clea "were great parents."

After the parties completed their presentations, the judge interviewed the children. Blair said he really wanted to go home because he missed his mother and father and they had never abused the children or intentionally tried to food poison Franki. Casey agreed. Casey added that more things had happened to her during the two years in resource care than in eight years with her parents. She said that when she was in the third resource home, her resource father pinned her against the wall and yelled at her. Both children very much wanted to be with their siblings. Casey told the judge that her brother, Alex, lies and "has a tendency to over exaggerate a lot of stuff." Casey insisted that Alex was lying about the abuse, because they were never abused. Blair added that he thought Emerson and Franki were being misrepresented by their Law Guardian, who was saying they did not want to go home. Blair and Casey believed that was not actually the case. Blair explained that when they were with Emerson and Franki at visits, it was clear the young girls missed their mother and father very much. When Blair and Casey arrived for the visit a week earlier, Franki came running out because she thought it was Jay and Clea. She hugged Blair and Casey, but kept asking, "where is mommy, where is daddy?"

The children also told the judge what Dr. Campagna had told them about his interview with Alex, including that Alex had made misrepresentations about the discipline chart or board. According to Blair, Dr. Campagna also told them that the Law Guardian said Alex, Emerson, and Franki did not want to go home.

Conversely, Alex made clear that he did not wish to have any contact with his biological parents. He said that he was happy with his resource parents and felt safe.

In a written opinion dated August 22, 2012, the court terminated defendants' parental rights to Alex, Emerson, and Franki, but determined that the Division had not clearly and convincingly proved that termination of parental rights was in the best interests of Blair and Casey. The court found every one of the Division's witnesses credible, and it also found each witness produced by each Law Guardian to be credible. Conversely, the court found the testimony of Jay and Clea not to be credible, and most of the testimony of their experts either incredible or unreliable with respect to the issues the court had to resolve.

Defendants appealed from the implementing order.

II.

 

We begin our discussion with well-settled principles of law concerning parents' rights to raise their children, the State's obligation to intercede under circumstances circumscribed by statute, and our role when parents appeal from a court's determination either that the parents have abused or neglected their children or that their parental rights have been terminated.

The constitutional right of parents to raise their children, one of "the most fundamental of all rights[,] . . . is a right tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008)); see also N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 620 (App. Div. 2010). The Legislature has charged the Division with exercising the State's parens patriae responsibility to protect children. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009). "The procedures for accomplishing those obligations are set forth in Title Nine, N.J.S.A. 9:6-8.21 to 8.73, and Title Thirty, N.J.S.A. 30:4C-11 to -14." Ibid.

When a parent appeals from an order stating that he or she has abused or neglected a child, or from an order terminating parental rights, we must determine whether the trial judge's decision was based on evidence supported by the record before the court. See N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 25-26, cert. denied, ____ U.S. ____, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013); N.J. Div of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). In abuse and neglect proceedings, the relevant evidentiary standard is a preponderance of the evidence, I.S., supra, 214 N.J. at 25-26, while in termination of parental rights proceedings it is by clear and convincing evidence, P.P., supra, 180 N.J. at 511. We may not disturb the trial court's factual findings "'unless they are so wholly unsupportable as to result in a denial of justice.'" Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)); N.J. Div. of Child Prot. & Permanency v. C.W., 435 N.J. Super. 130, 140 (App. Div. 2014) (citations omitted).

As a general rule, we accept a judge's decision that a witness was believable, not believable, or partially believable. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007); C.W., supra, 435 N.J. Super. at 139. The reason we generally accept such decisions is because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." E.P., supra, 196 N.J. at 104. A trial judge's "feel of the case . . . can never be realized by a review of the cold record." Ibid. (citation and internal quotation marks omitted); see also C.W., supra, 435 N.J. Super. at 139.

Even when a party appealing a decision "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," deference must be afforded unless the court "went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (citations and internal quotation marks omitted); see also N.S., supra, 412 N.J. Super. at 617. That is so "'[b]ecause of the family courts' special jurisdiction and expertise in family matters.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Nevertheless, the trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (2002).

 

A.

The Court's Fact-Finding Decision.

Clea argues that the trial court's decision that she abused and neglected her children is not supported by substantial credible evidence. She also contends the trial court erred by admitting into evidence, and relying upon, the uncorroborated statements of her children.

Jay contends the Division did not prove by a preponderance of the evidence that he had abused or neglected his children. He argues that the court's finding of abuse or neglect cannot be sustained as to him because his affirmative acts did not amount to gross negligence or recklessness, and because he did not fail to perform a cautionary act in a grossly negligently or reckless manner. Jay also argues that the trial court's findings as to him are so vague that he cannot properly respond on appeal to the court's decision.

Blair and Casey's Law Guardian agrees that the evidence was insufficient to support the court's conclusion that they were abused or neglected. The Law Guardian also asserts that the children's statements were not corroborated.

When the Division alleges in a complaint that a parent has abused or neglected a child, a trial court must decide at a fact-finding hearing whether the Division can prove its allegations. N.J.S.A. 9:6-8.44. The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). Title Nine defines an "abused or neglected child," in part, as

a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]

 

[N.J.S.A. 9:6-8.21(c)(4).]

 

As the Supreme Court has explained, a parent's failure to exercise a minimum degree of care requires more than negligence but not intentional conduct:

"The phrase 'minimum degree of care' denotes a lesser burden on the actor than a duty of ordinary care. If a lesser measure of care is required of an actor, then something more than ordinary negligence is required to hold the actor liable. The most logical higher measure of neglect is found in conduct that is grossly negligent because it is willful or wanton. Therefore, we believe the phrase 'minimum degree of care' refers to conduct that is grossly or wantonly negligent, but not necessarily intentional."

 

[Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 305 (2011) (quoting G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999)).]

 

"Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." G.S., supra, 157 N.J. at 178. "Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others." Id. at 179; see also T.B., supra, 207 N.J. at 306.

1. Clea.

Clea's contention that the Division did not prove by a preponderance of the evidence that she abused or neglected Emerson and Franki is entirely unpersuasive. The trial court's decision as to Clea is based on findings of fact that are adequately supported by the evidence. R. 2:11-3(e)(1)(A). The Division's proofs established not only that it was more probable than not, but also clearly and convincingly, that Clea abused Emerson and Franki. The Division's proofs, both direct and circumstantial, were compelling.

The three older children witnessed Clea's excessive corporal punishment of Franki and Emerson. According to Alex's statements, Clea struck Emerson and Franki with the pop-pop not only on the buttocks, at times with their pants off, but also on the hands and thighs. If the children cried out loud or gasped for breath, their mother would repeatedly swat them until they stopped crying, gasping for air, yelling, or screaming. Alex also saw Clea strike Franki on the forehead or back of the head if Franki did not walk down a hallway fast enough. For the same reason, Clea would hit Emerson in the forehead. In her statements, Emerson said her parents had caused the bruise on her ear.

Alex also witnessed Clea spank Franki with the pop-pop when the child was attempting to climb into her carseat. Clea would make Franki get down and repeat the process until Franki entered the car and car seat in a manner Clea deemed appropriate.

The older children witnessed Clea using crushed red pepper in Franki's mouth and holding Franki's mouth shut. According to Alex, Clea did this every time that Franki refused to eat red meat. Clea also used a mixture of crushed red pepper and hot sauce to punish Emerson for taking food as well as crushed red pepper and raw onion to punish her for drinking out of the toilet.

In addition to the children's direct observations, the State presented compelling circumstantial evidence and expert testimony that Franki was severely abused. Franki gained little, if any, weight during most of the time she resided with defendants. Dr. Agrawal, an expert pediatrician, attributed the cause of Franki's condition to nutritional failure; in other words, her parents were not providing her with sufficient nutrition. Franki's insufficient nutrition put her at risk for poor brain development, behavioral problems, and cognitive problems. Additionally, Dr. Agrawal testified that the scars on Franki's face, abdomen, chest, arms, and legs were consistent with non-accident trauma. Significantly, Franki had no difficulty gaining weight and thriving after being removed from Clea's care.

The statements of the older children, the medical evidence, and the testimony of the medical experts amply support the court's finding that Clea abused Franki and Emerson by inflicting excessive corporal punishment, N.J.S.A. 9:6-8.21(c)(4)(b); and by failing to exercise a minimum degree of care in supplying Franki with appropriate nutrition, N.J.S.A. 9:6-8.21(c)(4)(a).

Although the Division's proofs did not establish that Clea had inflicted excessive corporal punishment on Alex, the court found that Alex had been abused or neglected as the result of witnessing the excessive corporal punishment Clea inflicted on Emerson and Franki. As we have recognized, "[a] child's exposure to a parent's physical abuse of a child may well be abusive to others by instilling either fear or a tolerance to violence in intra-family relationships." Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002). We have also noted that the elements of proof in abuse or neglect cases, "'are synergistically related. Each proven act of neglect has some effect on the children.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. C.M., 181 N.J. Super. 190, 201 (App. Div. 1981)).

Defendants' disciplinary measures had a profound impact on Alex, as reflected in the poignant statements he made to his resource parent and the CEC social workers. Alex felt that if he placed his hand on his mother's shoulder, "it meant that [Franki and Emerson] wouldn't have to suffer any longer." But when he put his hand on her shoulder, "she wouldn't stop and wouldn't listen to her own words." Alex explained to the CEC social worker that he did not like to watch people suffer, and that he suffers from watching people suffer. He told his resource mother that he did not think his mother's method of discipline was right, and that when he grew up, his kids would never go through the things that he had gone through.

Once, before Alex's adopted brother died, Alex watched his adopted brother go through "training sessions" and became really angry. He did not want to see the training sessions. In hindsight, Alex wished he had spoken up more before his adopted brother died. When evaluated at a behavioral health hospital following his removal from his parents, Alex expressed his confusion and anger over the abuse that occurred at his home to his younger siblings.

Alex's statements and the reports of those who counseled and treated him established that Clea's excessive discipline of the younger children had a profound, adverse effect on Alex. The trial court did not err in so concluding.

Blair and Casey's Law Guardian argues that, as to them, the Division did not prove a case of abuse or neglect against Clea. We agree both as to Clea and as to Jay.

The Division developed no evidence in the record documenting the existence of bruises, scars, lacerations, fractures, or any other medical ailment suffered by either Blair or Casey as a result of Clea's conduct. See P.W.R., supra, 205 N.J. at 35-26. Indeed, the trial court cited P.W.R. in its opinion and drew a distinction between Clea's discipline of the three older children, and her discipline of Emerson and Franki. Nor has the Division argued that Clea abused or neglected Blair or Casey by inflicting upon them excessive corporal punishment.

In determining that defendants had abused the three older children, the trial court cited N.J.S.A. 9:6-8.46(a)(1), which provides that "proof of the abuse or neglect of one child shall be admissible evidence on the issue of abuse or neglect of any other child of, or the responsibility of, the parent or guardian[.]" The court also noted that "[t]he behavior of the [defendants'] biological children suggests that their exposure to the excessive corporal punishment of [Emerson and Franki] has instilled in them the kind of fear and tolerance of violence referenced in Robert M." But the statute cited by the court authorizes the Division to introduce evidence of abuse of one child on the issue of the neglect of another child; it does not state that abuse of one child is conclusive evidence of abuse of another child. The court's conclusory statements that the behavior of the biological children suggests they were abused or neglected as a result of witnessing excessive corporal punishment of the adopted children are not supported by the record insofar as it was intended to apply to Blair and Casey.

The court cited no psychological evidence, testimonial or documentary, to support its conclusion that by witnessing the excessive corporal punishment of their younger siblings, Blair and Casey were emotionally damaged. Cf. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 22-23 (App. Div. 2004) (reversing trial court's determination that a mother abused or neglected her infant son by failing to appreciate the continuing risk of harm posed by her husband's domestic violence, because no psychological evidence of emotional harm was introduced), certif. denied, 182 N.J. 426 (2005). In fact, the trial court cited scant evidence to support its decision.

As to Blair, the court cited Passucci's testimony that following a family visit Blair stated, "if you don't beat your children, they become wimps." Passucci apparently never followed up on the comment, and it is unclear why Blair made the statement, to whom he attributed it, or how he formulated that notion. Although he may have formulated his opinion as the result of witnessing Clea's discipline of the other younger children, it is equally speculative that Blair derived the notion elsewhere. After all, he lived with a military father. Whatever the basis of Blair's statement might have been, the causal connection between Blair's statement and Clea's excessive corporal punishment of Franki and Emerson is entirely speculative.

The court also cited Casey's statements that it bothered her to see Franki and Emerson in trouble, and that she told her father she was afraid of her mother. But those statements do not establish, by a preponderance of the evidence, that Casey was emotionally damaged as the result of Clea's excessive corporal punishment of the adopted children.

In determining there was insufficient evidence that the grossly or wantonly negligent conduct of Clea caused emotional damage to Blair and Casey, we are not insensitive to, and we do not minimize, the likelihood of a child suffering emotional harm by witnessing the abuse or neglect of another child. But precedent does not support the proposition that abuse of one child conclusively proves abuse of another child who witnessed it. The Division is required to independently establish abuse or neglect of the "observing" child by a preponderance of the evidence. The evidence cited by the trial court in this case does not support such a finding.

Clea also argues that the children's out of-court statements should not have been considered by the fact-finding judge and cannot support a finding of abuse and neglect against her because they were uncorroborated. We disagree.

In Title Nine hearings, "previous statements made by [a] child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4). Clea's arguments present the question of what constitutes corroboration.

We have explained that "[t]he most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence." N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003). This list, however, is not exclusive because "[b]y its nature, corroborative evidence 'need only provide support for the out-of-court statements.'" Ibid. (quoting Z.P.R., supra, 351 N.J. Super. at 436). As such, corroborative evidence "need not relate directly to the alleged abuser." Z.P.R., supra, 351 N.J. Super. at 436.

We first note that Clea's interpretation of N.J.S.A. 9:6-8.46(a)(4) is inaccurate. She states that "hearsay evidence from an abused or neglected child is only admissible if the evidence is sufficiently corroborated." The statements are admissible in evidence whether corroborated or not. The statute explicitly so provides. However, such statements, if not corroborated, are insufficient to support a finding of abuse or neglect. P.W.R., supra, 205 N.J. at 33.

Here, there was an abundance of corroborating evidence. Jay and Clea themselves admitted to using the pop-pop to swat Franki and Emerson ten times when they committed an infraction warranting such punishment. Jay admitted to Diamond during the CEC interviews that he disagreed with Clea administering further discipline when the children reacted emotionally to initial discipline with the pop-pop. Jay's admissions corroborated the older children's statements that Clea would use the pop-pop excessively. In addition, there was medical testimony that multiple scars on Franki's body were consistent with non-accidental trauma. And Emerson had a visible bruise on her ear, observed by her resource parents, which she said her parents caused. Moreover, Jay and Clea, through their own statements, admitted that they had used either pepper flakes, hot sauce, or a raw onion at one time or another with Emerson and with Franki.

Clea argues that though "there was corroborating evidence that the children were spanked, there was no corroborating evidence that the corporal punishment was excessive." She asserts that there was no corroborating evidence, for example, that she spanked the children daily, that she administered "an excessive number of swats," or that there were any injuries. That assertion overlooks the statements her husband made to Diamond, the medical testimony concerning the non-accidental nature of marks on Franki's body, and the bruise on Emerson's ear. Clea's argument also misapprehends the nature of corroborative evidence. As we have explained, such evidence need only provide support for the out-of-court statement; it need not independently establish the facts contained in the statements.

2. Jay.

We turn to Jay's arguments and first address his contention that the trial court's findings are void for vagueness. We reject that argument.

In non-jury trials, a court is required to "find the facts and state its conclusions of law thereon." R. 1:7-4(a). Following a fact-finding hearing in an abuse or neglect case, "[i]f facts sufficient to sustain the complaint are established, the court shall enter an order finding that the child is an abused or neglected child and shall state the grounds for said findings." N.J.S.A. 9:6-8.50(a). Those mandates require the trial court to "'state clearly its factual findings and correlate them with the relevant legal conclusions.'" M.C. III, supra, 201 N.J. at 342 (quoting Curtis v. Finneran, 83 N.J. 563, 570 (1980)). Our review of the transcript of the court's decision in this case leads us to conclude that the court complied with the foregoing requirements.

The trial court cited applicable law and, for the most part, correlated its factual findings with the applicable legal principles. The court found that the adoptive children were subjected to excessive corporal punishment, that Franki was nutritionally deprived to the point that she failed to thrive, and that Franki was salt poisoned. Jay faults the trial court for not explaining or identifying the specific conduct that constituted gross negligence, and for not explaining the extent of his knowledge, if any, about the degree to which Clea physically disciplined the children. As the Division points out, however, Jay has raised this argument for the first time on appeal. The Division points out that Jay's implicit argument that he was not complicit in Clea's excessive corporal punishment of the children was never raised before the trial court. The Division argues that Jay elected with Clea "to have joint representation and mount[] a joint defense from the date the case was filed in April [] 2010 up until they filed their most recent appellate brief[.]" That may indeed explain why the trial court did not specifically address the issues that Jay now raises on appeal.

Regardless of whether Jay raised his current arguments before the trial court, the court's opinion is not so vague that Jay is incapable of responding to it on appeal, as he suggests. The trial court's opinion includes the factual underpinnings for the court's conclusions that Emerson and Franki were abused. The court found compelling the medical evidence that Franki's failure to thrive resulted from nutritional deprivation. Jay, as well as Clea, had a duty to provide Franki with adequate nutrition. N.J.S.A. 9:6-8.21(c)(4)(a). The medical testimony that the court found believable, the lengthy period of time during which Franki did not gain weight or failed to thrive, and the evidence that either Jay, Clea, or both of them put crushed red pepper on Franki's food and at times held her mouth closed, fully supported the trial court's conclusion that Jay abused or neglected Franki. Moreover, Jay's own admissions to Diamond during the CEC interviews, and Alex's statements about the impact his parents' actions, and Jay's inaction, had on him fully supported the trial court's conclusion that Jay had abused or neglected Alex, Emerson, and Franki, notwithstanding that Jay did not attempt to separate himself from Clea during the fact-finding proceedings.

Having said that, we recognize that the trial court's opinion could have been clearer had the court specifically addressed the allegations against each parent, and the consequences of the parents' conduct on each child. Although perhaps unnecessary in all abuse or neglect cases, here the evidence clearly demonstrated differences between the way Jay and Clea administered corporal punishment, and differences between the way Clea punished the older children on one hand, and the youngest two children on the other. Moreover, the evidence concerning the impact Clea's discipline of the youngest children had on Alex was considerably different from the evidence, or lack of evidence, of the impact on Blair and Casey. Consequently, the court's opinion would have been clearer had it drawn those distinctions and correlated its findings concerning Jay's conduct with its conclusions concerning the abuse of each child.

Nevertheless, for the reasons we have explained, it is unnecessary to remand the matter for additional fact-finding. The court's decision was sufficiently clear, and adequately supported by the evidence, to sustain it as to Jay's abuse or neglect of Alex, Emerson, and Franki. The trial court's general conclusion that defendants were responsible for Franki's hypernatremia is an instance of the trial court failing to differentiate between Jay and Clea, or explain what facts led the court to conclude that Jay was responsible for Franki's condition. Were this the only evidence of Jay's abuse or neglect of Franki, we would reach a different result as to Jay. This was not, however, the sole finding as to Jay.

Jay asserts that, based on the record, it was "probable that [Franki] was not salt poisoned"; that he did not use excessive corporal punishment; and that he did not "witness his wife using excessive corporal punishment since he was outside the home serving with his unit." He also asserts that Franki's pediatrician, Dr. Sweinhart, did not have any concerns about the care, health, or safety of the children before they were removed.

We agree that the trial court's conclusion that defendants caused Franki's hypernatremia is based on thin circumstantial evidence. This is particularly so as to Jay, who was not even in this country in January 2010 when Franki was first hospitalized for the condition.

The trial court found that Franki was deprived of nutrition to the extent that she failed to thrive and her health and life were endangered. The court recounted in its opinion the considerable evidence that Franki's condition was caused by nutritional deprivation. The court stressed, explicitly, that the medical testimony of Franki's "unobstructed ability to ingest food and her remarkable response to adequate nutrition during and after hospitalization" was "an incredibly important fact and one for which the defense posed no answer." Thus, the court found that Franki's failure to thrive was due to defendants' failure to provide her with proper nutrition. The Division's medical proofs establish that finding not only by a preponderance of the evidence, but clearly and convincingly.

Jay emphasizes that Franki's pediatrician had no concerns about the care, health, or safety of his children before they were removed. That assertion is not entirely accurate. Dr. Sweinhart was monitoring Franki due to her failure to gain weight. And neither Clea nor Jay disclosed to Dr. Sweinhart either the manner in which they were disciplining their two-year-old adoptive daughter, or their use of pepper flakes to force her to eat. Clea never disclosed to Dr. Sweinhart that once, or perhaps more than once, she held Franki's mouth shut to keep the child from spitting out the pepper flakes. In view of those non-disclosures, we do not find persuasive defendants' arguments that Dr. Sweinhart had no concerns about the care of the children.

Jay also asserts that "[a]ll of the events cited in the court's opinion occurred while the children were in the care of their mother[.]" That is also not entirely accurate. Jay returned to the United States from his overseas tour of duty more than a month before Franki was hospitalized in April 2010. During that time, Franki continued to fail to thrive, and her condition deteriorated to the point where she had to be hospitalized.

Jay argues, apparently for the first time on appeal, that he did not witness his wife using excessive corporal punishment. Nevertheless, there was ample evidence he was aware of it and that, though disapproving of Clea's use of excessive punishment, took no action to prevent it. According to Diamond, Jay admitted during the CEC interviews to thinking that Clea might go overboard and be a little bit too controlling of the kids, "maybe physical abuse." In addition, the children specifically expressed their concerns to Jay about Clea's excessive discipline of Franki and Emerson. Jay's failure to stop Clea from excessively disciplining the two youngest children had a profound, adverse emotional effect on Alex. Thus, though likely not addressed by the trial court because it wasn't raised, ample evidence refutes Jay's argument that, in effect, he was unaware of Clea's wanton conduct.

For the reasons that we have already explained, we conclude that Jay did not abuse either Blair or Casey.

B.

The Guardianship Order.

Following the guardianship trial, the court did not terminate defendants' parental rights as to Blair and Casey. No one has appealed from that part of the implementing order. Accordingly, we address defendants' arguments as to the termination of their parental rights to Alex, Emerson, and Franki. In doing so, we reiterate that "[i]t is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights." F.M., supra, 211 N.J. at 448-49.

Clea and Jay contend that the Division failed to clearly and convincingly prove that termination of their parental rights as to Alex, Emerson, and Franki was in the children's best interests as codified in N.J.S.A. 30:4C-15.1(a)(1) (4). They argue that the Division failed to clearly and convincingly prove any of the four statutory elements.

Terminating parental rights must be in the best interests of the child or children. N.J.S.A. 30:4C-15.1(a); F.M., supra, 211 N.J. at 447. N.J.S.A. 30:4C-15.1(a) requires the State to establish the following in order to terminate one's parental rights:

(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.

 

These four factors "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The State must establish the statutory criteria by clear and convincing evidence. P.P., supra, 180 N.J. at 506.

The first statutory element of the best interests standard requires the Division to demonstrate that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). This directs the "trial court [to] consider whether the parent has harmed or is likely to continue to harm the child." P.P., supra, 180 N.J. at 506. The harm "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. This standard may be triggered by a single or isolated harm, or by an accumulation of harms over time. P.P., supra, 180 N.J. at 506; K.H.O., supra, 161 N.J. at 348. "To satisfy this prong, [the Division] does not have to wait 'until a child is actually irreparably impaired by parental inattention or neglect.'" F.M., supra, 211 N.J. at 449 (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).

The Division clearly and convincingly proved that Clea had harmed Alex, Emerson, and Franki, essentially by presenting on the issue of harm the same evidence it had presented at the fact-finding hearing. In addition, those children's Law Guardian presented the testimony of Dr. Nadelman, which the court found credible, and which established the substantial psychological damage that Alex, Emerson, and Franki had suffered as a direct consequence of the parental relationship with defendants. In Dr. Nadelman's opinion, Alex had been severely damaged by, among other things, witnessing Clea's increasingly excessive physical discipline of Emerson and Franki; the psychological damage Emerson had suffered before being placed with defendants was exacerbated when she was subjected to the physical pain and severe punishment in defendants' household; and there was a substantial risk that Franki would be re-traumatized if returned to the environment and the people where she suffered, did not grow, and was so sick for her entire life.

In view of the trial court's findings that all of the Division's witnesses were believable, and that Dr. Nadelman's testimony was both believable and compelling, we discern no basis for disturbing the court's finding that the Division clearly and convincingly established the first statutory element as to Clea.

Jay again argues that the Division presented absolutely no evidence that he neglected or abused the children. He emphasizes that he was deployed in Iraq from August 2009 through February 20, 2010, and the week after his return, the children were cared for by a family friend for six days. That argument overlooks significant evidence. For example, Jay knew Clea was using crushed red pepper with Franki. According to the CEC report, Jay had done so himself. Jay's argument also overlooks Alex's statements that he discussed Clea's excessive corporal punishment of the children with his father and that his father did nothing. Moreover, the court found credible the medical evidence that Franki's failure to thrive was caused by nutritional deprivation. Franki's failure to gain weight did not begin in August 2009 when Jay was deployed to Iraq, nor did it end in February 2010 when he returned. The Division's medical proofs concerning Franki's condition provided strong circumstantial evidence that Franki's failure to thrive, caused by nutritional deprivation, resulted from her parental relationship with defendants.

Dr. Nadelman's testimony also demonstrated the psychological harm that Emerson had suffered while in the custody and care of defendants; and the profound psychological consequences that Clea's abusive conduct and Jay's failure to intercede had on Alex. According to Dr. Nadelman, Alex had been severely damaged by the betrayal of his father in not being willing or able to protect the children from Clea's increasingly excessive physical discipline.

For essentially the same reasons we explained in affirming the abuse or neglect finding, we conclude that the guardianship trial court did not err in its finding that the Division had clearly and convincingly established the first element of N.J.S.A. 30:4C-15.1(a). In legal terms, the court's conclusion that the safety, health or development of Alex, Emerson, and Franki had been endangered by the parental relationship was supported by sufficient credible evidence in the record. The evidence was clear and convincing. Under our standard of review, there is no basis to disturb the court's determination.

Jay and Clea next contend that the Division did not clearly and convincingly prove the second statutory criterion, namely, that they were unwilling or unable to eliminate the harm facing their children, or were unable or unwilling to provide a safe and stable home for the children. We disagree.

To determine whether the second statutory element has been proved, a trial court must decide whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" their child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. The second element focuses on parental unfitness and its proofs overlap with the proofs supporting the first prong. D.M.H., supra, 161 N.J. at 379.

The second prong may be satisfied "by indications of parental dereliction and irresponsibility, such as . . . the inability to provide a stable and protective home, [and] the withholding of parental attention and care . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. "Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child[.]" N.J.S.A. 30:4C-15.1(a)(2).

The trial court's conclusion that Jay and Clea were unwilling or unable to overcome or eliminate the harm facing the children was based on the "credible expert testimony of Dr. Fiore, Ms. Diamond, and Dr. Nadelman[, who] addressed how neither adult has overcome their parenting deficits and will not be able to provide a safe and stable home for these children in time to meet their needs." The court recounted the specific testimony of each witness that the court relied upon in reaching its determination. Finally, the court determined as to Jay that "the [c]ourt cannot ever consider a return to one parent and not the other. When one parent is unable to protect a child from the dangers posed by another parent and cannot, therefore, provide a safe and stable home, this prong is satisfied." The court also found that permanency was in the best interests of the three children.

Jay's and Clea's arguments concerning the second element rely heavily upon the testimony of their own experts, and the testimony of other experts that include favorable assessments of their ability to resume their parenting roles. Their arguments fail to address, however, the trial court's credibility determinations as to Dr. Fiore, Ms. Diamond, and Dr. Nadelman, and also fail to address the court's credibility findings in the context of our standard of review. There was certainly competing expert testimony as to the second statutory criterion for terminating parental rights. But as we have said more than once, our role is not to make our own credibility determinations. Rather, the appellate standard of review requires that we determine whether the court's fact-finding and credibility determinations are supported by substantial credible evidence in the record. Here, they are.

The trial court's credibility determination as to Dr. Nadelman is particularly significant. According to Dr. Nadelman, Alex, Emerson, and Franki would suffer further psychological harm if returned to defendants. The doctor explained that merely returning the children to the environment where they had suffered painful abuse or neglect would serve as a "trigger" to, and exacerbate, their existing psychological damage. Thus, even if defendants had established that they would never repeat their past conduct, the psychological damage that Alex, Emerson, and Franki had suffered was such that defendants would be "unable to eliminate the harm facing the [children]" if the children were returned to them.

Even defendants' expert, Dr. Campagna, did not believe that Alex should be returned to defendants' custody immediately. Rather, he thought the process should be incremental. But the court had to consider not only that testimony, but also the need that Alex attain permanency. The court did precisely that, and under our standard of review we discern no basis for concluding that it erred in doing so.

Defendants next claim that the Division failed to clearly and convincingly prove the third statutory criterion. The third element of the statutory standard requires the Division to make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home," and the court to consider alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). The statute defines reasonable efforts as:

attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:

 

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

 

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

 

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

 

(4) facilitating appropriate visitation.

 

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

 

These efforts include the encouragement of an ongoing parent-child relationship and regular visitation. See D.M.H., supra, 161 N.J. at 392-93. "Consistent efforts to maintain and support the parent-child bond are central to the court's determination." Id. at 393. Whether the Division has fulfilled this obligation will be examined "on an individualized basis," though it must be cautioned that the "diligence of [the Division's] efforts on behalf of a parent is not measured by their success." Id. at 390, 393.

Concluding that the Division had satisfied the third statutory criterion, the trial court explained:

The documentary evidence as well as the testimony of the Division caseworkers, Ms. Passucci and Ms. DeOliveira, establishes that the Division provided "reasonable efforts" under N.J.S.A. 30:4C-15.1(a)(3). The record demonstrates that the children were engaged in therapy soon after their removal. Arrangements were also made for [Casey] and [Blair] to continue in therapy when they were moved to South Jersey in August of 2010. The family was evaluated at the CEC, which rendered a voluminous report that was received in July of 2010. The Division then arranged therapy for [Alex] and [Emerson]. However, the parents chose to engage in services with their own therapists, which the Division approved. The Division also referred these parents for parenting skills classes, but [Jay] and [Clea] found their own provider, which was also approved by the Division. Moreover, based on the testimony of Ms. Passucci, it is evident that the Division made many efforts to ensure weekly two-hour visits, including a therapeutic visitation program. Finally, several family team meetings were held, and the Division provided telephone contact while the children were in placement.

 

The court's findings were supported by substantial credible evidence in the record.

Clea contends the Division failed to discharge its statutory obligation to facilitate reunification. She cites the June 2010 notes made by Michele Rennert, who was supervising visitation, that Division supervisor Denise Hollenbach stated it was "[v]ery unlikely that there will be familial reunification." Rennert also noted that the Division "is already actively pursuing breaking parental bonds with [Franki]." It is not clear, however, that Hollenbach made the comment about the Division pursuing breaking parental bonds with Franki. But even if, as Clea suggests, the notes reflect a predisposition on the part of Hollenbach, such predisposition is not dispositive. The trial court, not the Division, was ultimately responsible for determining whether the Division satisfied the third statutory criterion. Indisputably, the Division was prepared to provide services. Defendants availed themselves of their own services. They did so primarily because they distrusted the providers recommended by the Division. Under those circumstances, there is no basis for concluding that the court erred when it found the Division had clearly and convincingly proved the third statutory criterion.

In addition to Clea's arguments, Jay contends that the Division wrongfully refused to arrange for family intervention and therapy with defendants and Alex. Jay further contends that the Division allowed Alex to unilaterally stop attending court-ordered family visitation three months after he was removed from their home, thus "thwarting [their] ability to reunify [the] family." Jay points out that the Division cancelled a meeting scheduled with the children and defendants' therapist, Ms. Storer.

The Division service providers, however, disagreed that family therapy should have been provided. Specifically, DeOliveira did not believe family therapy would be safe for Alex because defendants blamed him for the Division's continuing involvement with their family. Additionally, Alex was adamant that he did not want to visit with his parents. See V.C. v. M.J.B., 163 N.J. 200, 229, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000) (citation and internal quotation marks omitted) (explaining that denying visitation rights "should be invoked only in those exceptional cases where is clearly and convincingly appears that the granting of visitation will cause physical or emotional harm to the children . . . .").

The Division presented more than ample testimony that Alex would have suffered psychological harm if forced to visit with defendants and participate in family therapy. The evidence established that Alex was suffering from post-traumatic stress disorder accompanied by nightmares and anxiety. Thus, there were legitimate concerns about whether Alex should be forced to visit with his parents, or attend therapy. We note, additionally, that defendants did not pursue that issue with the court before the guardianship trial. Under those circumstances, there is no basis for concluding that the court erred when it found the Division clearly and convincingly proved the third statutory criterion.

Defendants also argue that Alex, Emerson, and Franki should have been placed with relatives. There is no presumption that a relative placement is favored, however. See N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 82 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014). The Division provided the court with ample credible evidence that placement of the three children with relatives would have adversely affected the children. The evidence included the likely influence defendants would have with relatives with whom the children might be placed, coupled with the psychological harm that the children would suffer, as suggested by Dr. Nadelman. Particularly in view of the evidence concerning the fourth statutory criteria, which interrelates with the third, the court's decision was more than amply supported by the record.

The fourth statutory prong "is a 'fail-safe' inquiry guarding against an inappropriate or premature termination of parental rights." F.M., supra, 211 N.J. at 453. "[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." M.M., supra, 189 N.J. at 281 (citation and internal quotation marks omitted). "The question to be addressed under that prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the child's] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355.

Here, the court found it "evident that termination of [defendants'] parental rights [to Franki] will not do more harm than good." Noting that of all the children in the family, Franki was the most seriously abused, the court explained that Franki had been in placement for more than two years; she was in need of a loving and nurturing home to help her overcome the abuse she had endured during the first two years of her life. Crediting the testimony of Diamond and Dr. Nadelman, the court concluded that defendants would be unable to meet Franki's needs presently or in the foreseeable future.

The court's conclusion was supported entirely by credible evidence in the record, including Dr. Nadelman's explanation of why Alex, Emerson, and Franki could not be returned to defendants. Particularly compelling were Dr. Nadelman's opinions that Emerson "will remain too scared to cry and to talk openly until she knows that she will never have to live with her past abusers"; that Franki could not be returned to defendants because returning her to the environment where she had suffered, did not grow, and was sick for her entire life would re-traumatize her; and that Alex's post-traumatic stress disorder had been caused by his witnessing Clea's abuse of Emerson and Franki as well as his father's refusal to intercede.

In addition, as recounted in detail above, ample evidence supported the court's conclusions that all of the children needed permanency, and that Alex, Emerson, and Franki had all bonded with nurturing, loving resource parents.

Defendants' arguments, again, focus on evidence that was contrary to the Division's proofs. They emphasize the testimony of their own expert, Dr. Campagna, and suggest that Dr. Fiore's testimony should have been given little weight. But as we have pointed out repeatedly, our standard of review does not permit us to independently evaluate the credibility of the witnesses, or second-guess the court's credibility determinations. Rather, our task is to determine whether the court's factual determinations were supported by substantial credible evidence and whether the court properly applied the law to those factual determinations.

Here, the court's opinion tracks the statutory elements of N.J.S.A. 30:4C-15.1(a), the court's factual determinations are amply supported by credible evidence in the record, and the court soundly applied the relevant legal principles to its factual determinations. Based on the record, it cannot be said that the court "went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279. (citation and internal quotation marks omitted).

For all of the foregoing reasons, we affirm in part and reverse in part the fact-finding decision. We affirm the court's finding that the defendants abused and neglected Alex, Emerson, and Franki. We reverse the finding of abuse and neglect as to Blair and Casey. Finally, we affirm the order terminating defendants' parental rights to Alex, Emerson, and Franki.

Affirmed in part, reversed in part.

 

1 We use pseudonyms for the parents, their friends, the children, and resource parents to protect their privacy and for ease of reference.