NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.V.J.

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2409-17T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

A.V.J.,

          Defendant,

and

J.R.H.,

     Defendant-Appellant.
__________________________

IN THE MATTER OF THE
GUARDIANSHIP OF
Z.J.H. and Z.A.J.,

     Minors.
___________________________

                    Submitted December 4, 2018 – Decided December 18, 2018

                    Before Judges Yannotti and Rothstadt.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Essex County, Docket
            No. FG-07-0183-17.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Richard Sparaco, Designated Counsel, on the
            brief).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Jason W. Rockwell, Assistant Attorney
            General, of counsel; Francesca E. Cheli, Deputy
            Attorney General, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minors (Nancy P. Fratz, Assistant Deputy
            Public Defender, on the brief).

PER CURIAM

      Defendant J.R.H. appeals from the Family Part's January 11, 2018 order

terminating his parental rights to Z.J.H. (Zack) and Z.A.J. (Zadie),1 who were

six and two years old respectively at the time of the guardianship trial. We

affirm substantially for the reasons stated by Judge Nora J. Grimbergen in her

written decision issued with the order.

      The evidence is outlined in detail in the judge's opinion. A summary will

suffice here. Defendant is the biological father of Zack, born in August 2011,

and Zadie, born in October 2014. On January 12, 2016, the children's late


1
   To protect privacy interests and for ease of reading, we use initials and
fictitious names for the parents and children. Rule 1:38-3(d)(12).
                                                                       A-2409-17T4
                                          2
mother, A.V.J. (Ann), obtained a restraining order against defendant that granted

the parents joint legal custody of the children, with Ann having primary

residential custody. The order granted defendant parenting time and ordered

defendant to complete a parenting class.

      Defendant made a referral to the Division of Child Protection and

Permanency (Division) in January 2016 about Ann's exposing the children to a

risk of harm by not providing adequate supervision. During the investigation of

that referral, on January 30, 2016, the Division was contacted by local police

after they found Ann and her boyfriend murdered in her apartment. At the time

that police responded to the apartment, Zack and Zadie were located inside and

were brought from there to a hospital to be assessed. The Division later learned

that the children witnessed the murder.

      The Division contacted defendant about taking custody of the children.

Defendant initially stated that he was unavailable because he was caring for his

cousin, but later met with workers at the hospital. After the county prosecutor

and local police questioned defendant about the murders, on January 31, 2016,

the Division initiated a Dodd removal2 of the children and placed them in a non-


2
  A Dodd removal is an emergent removal of a minor without a court order
pursuant to the Dodd Act,  N.J.S.A. 9:6-8.21 to -8.82. N.J. Div. of Child Prot.
& Permanency v. T.U.B.,  450 N.J. Super. 210, 215 n.2 (App. Div. 2017).
                                                                         A-2409-17T4
                                          3
relative resource home pending further investigation. Defendant was eventually

arrested and indicted for having committed the murders of Ann and her

boyfriend, as well as another unrelated, additional killing.

        After defendant's arrest, in May 2016, the Division placed the children

with their maternal grandmother with the court's and defendant's approval. The

children have continued to reside with their grandmother, who wishes to adopt

them.

        After the children were placed, they underwent psychological evaluations,

engaged in therapy, and received various services through the Division. During

a February 23, 2016 psychosocial evaluation, Zack expressed that he feared

defendant. He was diagnosed as having post-traumatic stress disorder, and it

was recommended that he receive trauma-informed individual therapy to help

process the violent death of his mother and her boyfriend.

        By September 2016, Zack's teachers reported that his behavior and

demeanor were improving and he was becoming more comfortable at school.

They recommended that he not be removed from his current environment. His

therapist reported that Zack attended twenty individual sessions, had developed

a rapport with his therapist, and was learning to express his feelings, such as

fear and anger, in a safe way. On January 17, 2017, Zack's therapist reported


                                                                         A-2409-17T4
                                        4
that Zack had "recreated scenes where people are being physically hurt,

controlled and made to feel fearful. He has also recreated scenes where a woman

who he calls mom is shot by a man who he identifies as his father, and then his

father goes to jail." The therapist noted that Zack had begun to gain a sense of

stability and safety and recommended that any visits with defendant be done in

a "predictable and well thought out way as to respect how it will affect [Zack]'s

feelings of safety."

      Zack underwent a second psychosocial evaluation on April 13, 2017, in

which he revealed that defendant had "touched his penis with his hand, one time,

over [Zack]'s clothes, when [Zack] was four." He also stated that defendant

once pointed a gun at his (Zack's) penis. Zack displayed a great deal of anger

toward defendant and was experiencing symptoms of anxiety, withdrawal,

depression, nightmares, and flashbacks.       It was recommended that Zack

participate in individual therapy with a mental health professional with expertise

in sexual abuse. On June 13, 2017, Zack's counselor provided another update

and recommended that he continue individual therapy.

      Zadie also received therapeutic treatment. Her therapist reported that she

began treatment due to her refusal to separate from her grandmother at home

and "her constant need to be held, her increasing nightmares, and difficulties


                                                                          A-2409-17T4
                                        5
sleeping at night." The therapist indicated that she had become increasingly

verbal and expressed anger and aggression when Ann was mentioned. It was

recommended that Zadie would benefit from continued therapy to help her

process and manage her feelings.

      On September 26, 2017, Dr. Mark Singer, Ed.D conducted a bonding

evaluation between Zack and Zadie and their grandmother. Along with the input

of Zack's therapist, Singer concluded that the children's grandmother was

functioning as their psychological parent. Singer opined that "the significance

of this relationship in terms of providing the child[ren] with a sense of security

and stability cannot be over-stated." Significantly, Singer concluded that due to

exposure to trauma, the children had "a heightened need [for stability] and this

need is being fulfilled by their grandmother."

      According to the doctor, if the children were separated from their

grandmother, they would be subjected to "significant and enduring harm as the

data does not suggest that there is any other consistent, healthy parental figure

to mitigate such harm. This harm would be magnified by the previous trauma

exposure, including the loss of their mother, relationship with their father, as

well as exposure to violence." The doctor did not perform a bonding evaluation

between defendant and the children.


                                                                          A-2409-17T4
                                        6
      In the meantime, while the children were in their grandmother's care and

undergoing treatment, the Division provided services to defendant while he was

incarcerated awaiting trial. A Division caseworker visited with him bimonthly.

The Division did not facilitate visitation between defendant and the children in

accordance with the recommendation of their therapist, but the Division

provided defendant with monthly written updates and recent photos of the

children and kept him informed about the identity of his caseworker. During

one visit, defendant offered the caseworker photos and a card to give to the

children; however, the children's therapist decided that it would be best for the

children to not receive the items. Defendant initially refused services at the jail,

but eventually agreed to attend parenting classes in August 2017 and was placed

on a waiting list. He ultimately never attended. Defendant also refused to

participate in a psychological evaluation arranged by the Division, citing his

pending criminal charges.

      The Division also engaged defendant in discussions concerning the

children's placement. During the caseworker's visits, defendant stated that he

approved of the children's placement with their grandmother, but wanted to have

a connection with them. He offered his aunt, mother, and uncle as potential

placements for the children, each of whom the Division ruled out.


                                                                            A-2409-17T4
                                         7
      The court entered a permanency order on January 27, 2017. The order

approved the Division's plan for the children for termination of defendant's

parental rights and adoption. In accordance with plan, on March 7, 2017, the

Division filed a complaint seeking guardianship of the children.

      Judge Grimbergen presided over the guardianship trial on November 29,

2017 and December 21, 2017.           During the trial, the Division called its

caseworker and Singer as witnesses. Defendant called the Director of Social

Services for the jail, who testified that the facility would have provided

parenting related services to defendant if he had requested them.

      After considering the testimony and documents admitted into evidence,

on January 11, 2018, Judge Grimbergen entered the guardianship judgment that

ordered termination of defendant's parental rights.         In her comprehensive

twenty-six page written decision, the judge found that the Division had proven

all four prongs of the best interests of the child test,  N.J.S.A. 30:4C-15.1(a), and

that termination of defendant's parental rights was in the children's best interests.

      On appeal, defendant argues the following points.

             POINT I

             THERE WAS INSUFFICIENT EVIDENCE TO
             PROVE   BY  CLEAR  AND  CONVINCING
             EVIDENCE   THAT    THE   STATUTORY


                                                                             A-2409-17T4
                                         8
REQUIREMENTS OF  N.J.S.A. 30:4C-
15 AND 30:4C-
15.1 WERE MET.

    A.   RELYING UPON SPECULATION
    AND CONJECTURE THAT J.R.H. WAS
    RESPONSIBLE FOR THE MOTHER'S
    DEATH, THE LOWER COURT ERRED
    IN FINDING THAT THE CHILDREN'S
    SAFETY, HEALTH OR DEVELOPMENT
    [H]AS BEEN OR WOULD CONTINUE
    TO BE ENDANGERED BY THE
    PARENTAL RELATIONSHIP UNDER
    THE FIRST PRONG.

    B.   THERE WAS INSUFFICIENT
    EVIDENCE UNDER THE SECOND
    PRONG TO SUPPORT THE TRIAL
    COURT'S CONCLUSION THAT THE
    DIVISION HAD PROVEN BY CLEAR
    AND CONVINCING EVIDENCE THAT
    THE    DELAY  OF  PERMANENT
    PLACEMENT WILL ADD TO ANY
    POTENTIAL    HARM   TO   THE
    CHILDREN.

    C.  DUE   TO   THE    DIVISION'S
    FAILURE    TO    WAIT     UNTIL
    RESOLUTION OF THE CRIMINAL
    CHARGES, THE DIVISION FAILED TO
    PROVE BY CLEAR AND CONVINCING
    EVIDENCE   THAT    IT  OFFERED
    REASONABLE SERVICES TO J.R.H.

    D.    DUE TO THE FAILURE OF THE
    DIVISION    TO    WAIT    UNTIL
    RESOLUTION OF THE CRIMINAL
    CHARGES, AND THE INABILITY OF
    J.R.H. TO SUBMIT TO A BONDING

                                               A-2409-17T4
                     9
                   EVALUATION,     THERE     WAS
                   INSUFFICIENT EVIDENCE UNDER
                   THE FOURTH PRONG TO PROVE BY
                   CLEAR AND CONVINCING EVIDENCE
                   THAT TERMINATION OF J.R.H.'S
                   PARENTAL RIGHTS WILL NOT DO
                   MORE HARM THAN GOOD.

      On appeal, our review of the trial judge's decision is limited. We defer to

her expertise as a Family Part judge, Cesare v. Cesare,  154 N.J. 394, 412 (1998),

and we are bound by her factual findings so long as they are supported by

sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M.,  189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T.,  269 N.J. Super. 172, 188

(App. Div. 1993)). After reviewing the record, we conclude that the trial judge's

factual findings are fully supported by the record and, in light of those facts, her

legal conclusions are unassailable. We affirm substantially for the reasons

stated by Judge Grimbergen in her thorough decision.

      We conclude that defendant's arguments challenging Judge Grimbergen's

determinations are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                            A-2409-17T4
                                        10