NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.J. and E.M.G., Jr and R.N.-I

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1465-19T2
A-1467-19T2

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

D.J. and E.M.G., Jr.,

Defendants-Appellants,

and

R.N.-I.,

Defendant.
_______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF A.S.G.,
E.A.G., and D.M.J., minors.
_______________________________

Argued November 19, 2020 – Decided December 4, 2020

Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FG-07-0116-19.

Dianne Glenn, Designated Counsel, argued the cause
for appellant D.J. (Joseph E. Krakora, Public Defender,
attorney; Dianne Glenn, on the brief).

Daniel DiLella, Designated Counsel, argued the cause
for appellant E.M.G., Jr. (Joseph E. Krakora, Public
Defender, attorney; Robyn A. Veasey, Deputy Public
Defender, of counsel; Daniel DiLella, on the briefs).

Julie B. Colonna, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Julie B. Colonna, on the
brief).

Nancy P. Fratz, Assistant Deputy Public Defender,
argued the cause for minors (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Meredith Alexis
Pollock, Deputy Public Defender, of counsel; Nancy P.
Fratz, of counsel and on the brief).

PER CURIAM

Defendants D.J. ("Diana")1 and E.G. ("Edward") appeal from a November

20, 2019 judgment of guardianship terminating their parental rights to A.S.G.

1
We use fictitious names to protect the privacy of the biological parents and the
children. R. 1:38-3(d)(12).
A-1465-19T2
2
("Amy") and E.A.G. ("Elizabeth"), who were three and two years of age at the

time of entry of the judgment. 2 We affirm.

Diana and Edward have a prior history with the Division of Child

Protection and Permanency (Division). In 1999, Diana's parental rights to three

older children were terminated and they were adopted by their paternal

grandmother in 2002. In 2014, the Division received a referral indicating that

Diana and her newborn, Dora, were evicted and homeless. The pair were living

with Diana's friend. The Division provided baby supplies and a referral to the

Board of Social Services, and ultimately closed its case.

In 2017, the Division received a referral from a hospital reporting that

Diana had a high-risk pregnancy with Elizabeth requiring a caesarian section,

but missed the scheduled delivery and appeared a week later. Diana was living

with Edward at the time and Amy was just seventeen months old. Elizabeth was

born healthy. The Division conducted a home visit and noted the family had

inadequate sleeping provisions, clothing, and formula for the baby.

The Division also learned Edward had substantiated allegations of sexual

abuse of minors in 1984 and 2008, and a September 29, 2006 judgment of

2
D.M.J. ("Dora") was dismissed from the litigation and placed with her
biological father.
A-1465-19T2
3
conviction for child endangerment. Regarding the 1984 incident, Edward told

the Division he masturbated onto the child's leg but did not penetrate her, but

later denied ever being charged and claimed he was out of the country at the

time of the alleged incident. Edward pled guilty to the 2006 child endangerment

offense and received three years' probation and time served. He claimed he

entered the plea in order to be released from jail and denied he was a sex

offender. Edward completely denied the 2008 allegation, which involved abuse

of his sister.

Edward attended a psychosexual evaluation scheduled by the Division

with Cassandra Hutchins, Psy.D. in July 2017. She concluded there was no

evidence to support his denials of the prior history of sexual abuse. Dr. Hutchins

opined the risk of Edward abusing an infant or toddler was "likely low" but noted

there was a risk "as it pertains to his interactions with other children that he may

come into close contact with" and recommended he be referred to sex offender

therapy. The Division referred Edward for treatment, but he did not attend ,

claiming he was not a sexual offender.

In December 2017, Diana contacted her Division case worker and stated

it was "'not safe' for her children or herself in the home" and requested removal

of the children. When the worker arrived at the home, she observed a cast on

A-1465-19T2
4
Diana's arm. Diana denied domestic violence and stated she was injured when

she fell while running after her children. Although the Division offered Diana

an opportunity to meet with a domestic violence liaison and parenting classes ,

she refused to engage in either service. During this time, Edward relocated to

North Carolina, and claimed to be living with his wife and that he was no longer

in a relationship with Diana.

In February 2018, Newark police arrested and incarcerated Diana and

Edward due to an altercation in which she stabbed him in the eye and collar

bone. Edward claimed the incident began as a verbal altercation, but when he

returned to the residence the following day, Diana stabbed him during a physical

altercation. He claimed the children were asleep upstairs during the fight and

denied domestic violence or a history of domestic violence. However, Edward

stated he was concerned for Dora's safety because Diana punched the child and

slammed Amy down in a chair. Edward also said Diana used marijuana and

cocaine. Diana claimed she stabbed Edward in self-defense because he

assaulted her. Diana claimed she was angry with Edward because he was

unfaithful and expressed her anger by throwing a microwave on the ground. She

stated Amy and Elizabeth were in the kitchen and witnessed the incident and

were crying. Diana stated Edward pushed her onto a couch and punched her

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when she tried to call the police, grabbed the phone, and continued hitting her.

She then grabbed a knife and swung at him three times as he ran out of the house.

The Division removed the children and placed them in a resource home.

After Diana's release from incarceration, she was granted visitation beginning

in March 2018, but was consistently late. Edward began his visitation in

November 2018. The Division asked Diana to sign consent forms in order to

perform health assessments for Amy and Elizabeth, but she refused.

In June 2018, the Division referred the parties to Alison Strasser Winston,

Ph.D. for parenting capacity evaluations and psychological assessments. Diana

denied domestic violence and stated she did not believe Edward sexually abused

children. Edward gave inconsistent answers during the assessment and his test

results showed he "failed to respond in an open and honest manner." Dr.

Winston found Edward minimized the domestic violence in an attempt to

expedite reunification of the children with Diana, and demonstrated no insight

into his "history of anger management difficulties" and the impact of the

domestic violence on the children. Edward denied the need for sexual offender

treatment and stated he would not comply with the service. Although Edward

"demonstrated adequate emotional attachments to his children," Dr. Winston

found his refusal to comply with services concerning because it "prolonged the

A-1465-19T2
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suspension of his contact with his daughters." She concluded Edward's lack of

involvement in the children's lives resulted in his lack of knowledge of their

emotional and physical needs, and if he "feels overwhelmed by his parenting

responsibilities, he is at risk of lashing out at them due to his anger issues." She

concluded Edward's noncompliance with services rendered him "incapable of

providing his children with a safe and stable environment."

Dr. Winston concluded Diana could not parent the children because her

"inability to admit to the level of violence in her relationship . . . suggests that

she is unable to protect her children and herself from harm." Dr. Winston also

concluded it was "extremely troubling that [Diana] and [Edward] remain in a

relationship" because it exposed the children to domestic violence. She found

Diana lacked insight into the level of risk posed by Edward's history of sexual

offenses. She concluded "[Diana's] tendency to defend [Edward] and to

rationalize his behavior highlights her dependency on him . . . and . . .

demonstrates her tendency to place her need to be in a relationship over her need

to protect her children from harm." Although Dr. Winston found Diana

"demonstrated adequate emotional attachments to her children . . . [she]

demonstrates no remorse about the level of risk at which she had placed her

A-1465-19T2
7
children as a result of her involvement in an abusive relationship with a

convicted sexual offender."

Dr. Winston recommended couples counseling when the parties'

counselors deemed it appropriate. She recommended Diana obtain housing for

herself and the children and psychotherapy, psychiatric evaluation, domestic

violence counseling, and parenting skills classes. She also recommended

Edward attend sex offender treatment, anger management, batterer's

intervention, psychotherapy, and parenting classes. The Division made referrals

based on these recommendations, but neither Diana nor Edward complied. The

Division also referred the parties to the Youth Development Clinic (YDC), but

they attended inconsistently and were discharged from the program.

In July 2018, the parties failed to attend a five-month review meeting with

the Division. In October 2018, Diana informed the Division she was attending

substance abuse and mental health treatment at Team Management 2000. The

Division provided Diana with a bus pass in order to attend treatment, but her

attendance was inconsistent. The court ordered Edward to comply with services

in August and November 2018, and February 2019, but he refused. As a result

of the parties' failure to participate in services, the court approved the Division's

A-1465-19T2
8
permanency plan of termination of parental rights followed by adoption in

February 2019.

Despite their prior claims, Diana and Edward resumed living together and

presented as a couple in April 2019. As a result, the Division referred them to

parenting classes from April through July, but the parties did not attend. In June,

the family began supervised visitation, but Diana was late to nearly all

visitations. Diana's records from Team Management revealed all positive urine

screens, including a July 2019 screen that was positive for alcohol, cocaine, and

marijuana.

In July 2019, Elizabeth Stilwell, Psy.D. performed psychological and

bonding evaluations. Her report explained she reviewed the Division's records,

including court records and orders, prior evaluations, and treatment records. Dr.

Stilwell also conducted behavioral observations of the parties and the children

and an observation of Elizabeth and her resource parents. The third component

of the evaluation included clinical interviews of the parties and psychological

testing. Diana failed to complete the psychological testing, claiming she had to

meet a social worker in a library to look up a "reference" and canceled her

rescheduled evaluation despite the doctor informing her of the importance of the

evaluation given the looming guardianship trial. Edward partially completed

A-1465-19T2
9
the testing but "left an excessive number of items blank, despite being instructed

to answer every question. As such, his protocol could not be scored."

Dr. Stilwell concluded Diana's "judgment and decision-making are

significantly impaired" and Diana lacked "insight into why it was important for

her to participate in the . . . evaluation." She also found Diana had not

ameliorated the causes for the children's removal and the prognosis for her

ability to parent or provide them with permanency was poor because of her

failure to complete the services offered by the Division. Although Diana was

engaged with the children during the bonding evaluation, Dr. Stilwell concluded

"this does not suggest that she would be able to handle the stresses and demands

of full-time parenting."

Dr. Stilwell found Edward's representations of the history of domestic

violence and relationship with Diana "illogical and incomprehensible." Despite

prior admissions to the contrary, he claimed Diana stabbed him while they were

practicing marital arts as a family. 3 Dr. Stilwell noted

the narratives that [Edward] has contrived are poorly
formed and not well thought out. It is clear that [he] is
intentionally trying to deceive the [c]ourt, [the
Division], and the undersigned . . . . It appears that
[Edward] is not interested in maintaining a relationship
with [Diana]. He reports that while they technically

3
Diana offered a similar narrative.
A-1465-19T2
10
reside at the same residence, they never see each other
. . . and that he is questioning whether he even wants to
co-parent with her.

Dr. Stilwell concluded

[t]he totality of the data suggests that [Edward] presents
with numerous parenting deficits that would put any
child placed in his care at a risk of harm. There is a
significant risk for ongoing domestic violence between
[the parties] . . . . While [Edward] was determined to
be low-risk for offending against a biological child, his
risk to his daughter[]s as they mature . . . is moderate to
high . . . . Furthermore, [Edward] does not appear to
have a sufficient understanding of children's emotional
or developmental needs or the importance of caregiver
consistency and reliability. [He] interacted minimally
with the children during the bonding evaluation and
appeared to be annoyed that he had to attend an
appointment outside of their regularly scheduled visit.

Dr. Stilwell opined Elizabeth was securely attached to her resource

parents, who became her psychological parents and wished to adopt her. She

noted "[t]here is no evidence . . . that there is any other consistent and healthy

parental figure in [Elizabeth's] life . . . to mitigate the harm of being separated

from her psychological parents. [I]f [Elizabeth was] separated from her

psychological parents, she would suffer a traumatic loss that would produce

significant and enduring harm." Although Amy was not in a pre-adoptive

resource home, Dr. Stilwell concluded "it is unlikely that [Diana ] and [Edward]

will become viable parenting options . . . in the foreseeable future . . . and . . .

A-1465-19T2
11
[Amy should] be freed for adoption and have a chance at achieving

permanency."

At trial, Dr. Stilwell testified consistently with her report. The Division

also called an adoption worker and a supervising family service specialist

assigned to the case. Neither Diana nor Edward testified or called witnesses.

The trial judge issued an oral decision in which he found the Division had clearly

and convincingly proven all four best interest prongs codified in N.J.S.A. 30:4C-

15.1(a).

The judge recounted the parties' history with the Division and their failure

to comply with any of the services offered. He also credited Dr. Stilwell's

testimony, which he characterized as "comprehensive," "articulate," "very

knowledgeable" and found he was an "extraordinarily credible witness."

The judge found the Division proved the first best interests prong because

the children were exposed to domestic violence and physical abuse by their

parents who failed to shield them from the harm. He found the children would

continue to be harmed because both parents refused to cooperate with the

Division and Diana and Edward had not "availed themselves of any therapy to

help them better deal with their issues as parents." He noted Diana and Edward's

failure to engage in services "deprived the children of their parents, of the

A-1465-19T2
12
permanency that they deserve, of them being able to experience . . . a

relationship between the children and their parents[.]" The judge concluded

because the parties were "presenting as a couple . . . that reunifying this couple

would put the children at unjustifiable risk."

The judge found the Division proved the second prong because neither

parent "is able to provide care for the children today, nor will they be able to do

so in the foreseeable future." The judge credited Dr. Stilwell's "unrebutted

expert opinion . . . that . . . [Diana] is unlikely to . . . provide her children with

permanency, as she is ill-equipped to handle the stresses that come with being

parents to young children." He also credited Dr. Stillwell's view that Edward

"has not demonstrated any ability or indication that he is willing to be able to

make himself fit to provide care for the children." He noted Edward "obviously

was convicted of endangering the welfare of a child." The judge concluded

"[n]either parent has presented the Division or the [c]ourt with a plan as to how

they might care for these children if they were returned. Their current housing

status is unknown."

Citing Dr. Stilwell's unrebutted testimony, the judge found the Division

proved Elizabeth "would suffer . . . irreparable harm if removed from her

resource parents." He concluded "[t]o deny [Amy] and [Elizabeth] permanency

A-1465-19T2
13
in the hope that [Edward] or [Diana] will be stable parents, in light of their

histories, in light of the time that has expired since the last removal, is not in the

. . . children's best interest."

The judge found the Division proved the third best interests prong. He

credited the adoption worker's testimony, which he characterized as "candid"

and explained "the extensive history of the Division's attempts to bring these

parents into a position so that they might be able [to parent]." He stated:

The Division has made the reasonable efforts to help
[Diana] and [Edward] correct the circumstances that led
to the removal.

They tried providing over and over services to the
family, psychological evaluations on more than one
occasion, therapy sessions, substance abuse
assessment, parenting skills, visitation, relative
assessment, placement transportation service, family
team meetings, domestic violence services, offers for
sex offender treatment. And, despite all of these
services being provided, neither parent is in a position
to care for the children today, nor will they be able to
do so in the near future.

There are no alternatives to termination of
parental rights. The Division has assessed several
relatives . . . and many of them were just dead end
streets, it was a name. They tried to get them to do it,
they didn't provide anything, they were people who had
other violations, they couldn't be licensed. . . . [T]he
Division in this case did an awful lot of hard work to
look for alternatives.

A-1465-19T2
14
The judge found the Division proved the fourth prong and that a

termination of parental rights would not do more harm than good to the children.

He noted Elizabeth's "resource parents have unequivocally expressed a desire to

adopt her and provide her with stability and permanency" whereas neither Diana

nor Edward "could safely parent the child today, nor will they be able to in the

future." Regarding Amy, the judge found as follows:

I heard testimony today that, in fact, when a child is
legally ready to be adopted, the chances in this instance
of finding them an adoptive home is . . . much more
likely.

So, in this case, even without a specific home to
name, I find that the Division has also proven by clear
and convincing evidence that termination of parental
rights, when it comes to [Amy], would do no more harm
than good.

On appeal, both defendants challenge the trial judge's findings under all

four best interests prongs. Diana argues as follows: 1) there was no evidence

she harmed the children and the one incident of reported domestic violence did

not affect the children because they are young and unaware; 2) she and Edward

are no longer in a relationship and she is no longer reliant on him; 3) the court

could not rely on the expert's testimony because Diana did not complete the

psychological testing with the expert; 4) she can parent despite being

occasionally overwhelmed; 5) the Division removed the children without

A-1465-19T2
15
consideration of Diana's pre-arranged plans for her family to care for them; 6)

the Division failed to provide housing assistance and did not keep her apprised

of the children's progress; 7) the Division offered inadequate visitation and

impeded visitation; and 8) a termination of parental rights will do more harm

than good because only Elizabeth is in an adoptive home while Amy is in foster

care awaiting adoption, and an adoption by separate homes will terminate the

sibling bond.

Edward argues the Division wrongfully concluded he was a sex offender

and failed to review his criminal record and prior substantiations. He asserts he

is not on the sex offender registry and not required to have treatment by virtue

of his prior conviction, and maintained custody of his other children without

incident. Edward claims the Division erroneously recommended he attend sex

offender services he did not need, and when he failed to do so, it assumed he

was an offender and denied him visits with the children. He argues because the

services provided by the Division were predicated on an assumption he was a

sex offender he did not receive appropriate services, which prevented

reunification and affected visitation. Edward contends the physical altercation

with Diana was caused by her post-partum depression and there is no history of

domestic violence. He asserts the Division did not consider his plans to

A-1465-19T2
16
financially support the family. He alleges adoption would do more harm than

good because the judge did not consider the advanced age of Elizabeth's resource

parents and that they have no plan of succession in the event of their demise

while caring for a young child.

In reviewing the parties' challenges to the judge's decision, we must defer

to his factual findings unless they "'went so wide of the mark that a mistake must

have been made.'" N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279

(2007) (citation omitted). So long as "they are 'supported by adequate,

substantial and credible evidence,'" a trial judge's factual findings will not be

disturbed on appeal. In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App.

Div. 1993) (citation omitted). We owe special deference to the trial judge's

expertise in handling family issues. Cesare v. Cesare, 154 N.J. 394, 411-13

(1998).

In striking a balance between a parent's constitutional rights and a child's

fundamental needs, courts employ the four-part guardianship test articulated in

N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 604-11 (1986) and

codified as N.J.S.A. 30:4C-15.1(a), which states:

The division shall initiate a petition to terminate
parental rights on the grounds of the "best interests of
the child" pursuant to subsection (c) of section 15 of

A-1465-19T2
17
P.L. 1951, c. 138 (C. 30:4C-15) if the following
standards are met:

(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 [their] 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.

In their application, the four factors above "'are not discrete and separate, but

relate to and overlap with one another to provide a comprehensive standard that

identifies a child's best interests.'" N.J. Div. of Youth & Fam. Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).

Having reviewed the record, we conclude the judge's factual findings are

based on sufficient credible evidence, and in light of those findings, his legal

A-1465-19T2
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conclusions are unassailable. The record amply supports his decision that a

termination of Diana and Edward's parental rights is in the children's best

interests. The defendants' arguments do not lead us to a different conclusion.

Affirmed.

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