NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. R.L.M.

Annotate this Case

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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-5639-17T4
A-5640-17T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

R.L.M.,

Defendant,

and

K.G. and E.R.,

Defendants-Appellants.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF A.A.M.D.A.
and A.A.L.M.,

Minors.
_____________________________

Argued January 27, 2020 – Decided February 21, 2020
Before Judges Sumners, Geiger and Natali.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic County,
Docket No. FG-01-0009-18.

Catherine F. Reid, Designated Counsel, argued the
cause for appellant K.G. (Joseph E. Krakora, Public
Defender, attorney; Robyn A. Veasey, Deputy Public
Defender, of counsel; Catherine F. Reid, on the briefs).

Anne E. Gowen, Designated Counsel, argued the cause
for appellant E.R. (Joseph E. Krakora, Public Defender,
attorney; Robyn A. Veasey, Deputy Public Defender,
of counsel; Anne E. Gowen, on the briefs).

Alexa L. Makris, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Jane C. Schuster, Assistant Attorney
General, of counsel; Alexa L. Makris, on the brief).

Noel Christian Devlin, Assistant Deputy Public
Defender, argued the cause for minors (Joseph E.
Krakora, Public Defender, Law Guardian, attorney;
Phyllis G. Warren, Designated Counsel, on the brief).

PER CURIAM

In these consolidated appeals, defendant fathers K.G. (Kevin) and E.R.

(Edward) appeal the Family Part's July 23, 2018 order terminating their parental

rights to their respective daughters, eleven-year-old A.A.M.D.A (Ann) and two-

year-old A.A.L.M. (Anita), in accordance with the four-prong best interests test

A-5639-17T4
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under N.J.S.A. 30:4C-15.1(a).1 Defendant R.L.M. (Rita), the daughters' mother

voluntarily surrendered her parental rights and is not a party to the appeals. The

Law Guardian and the Division of Child Protection and Permanency (Division)

urge that we uphold the termination orders. We affirm.

A. Background

The record shows the Division conducted its most recent emergency

removal of the children from Rita's care in December 2016, after Edward

threatened to kill her. 2 This was not the first time that Rita alleged abuse by her

daughters' fathers.

Over three years earlier, in June 2013, Kevin reportedly assaulted Rita in

front of Ann, forcing them to leave his home. A year later, in August 2014, Rita

took Ann to the hospital alleging Kevin sexual assaulted Ann, then seven years

old, over a period of several years. Ann separately denied and confirmed that

Kevin touched her inappropriately and exposed himself to her. Kevin denied

the allegations but agreed to a safety plan with the Division. Following a police

1
We use initials and fictitious first names to protect the identities of the parties.
R. 1:38-3(d)(12).
2
Prior removals had occurred in August 2015 of Ann, and January 2016 of
Anita, immediately following her birth.
A-5639-17T4
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investigation into Ann's allegations, Kevin was arrested and incarcerated in

January 2015, for child endangerment and aggravated sexual assault. Kevin

claimed Rita fabricated the allegations. The charges were dropped based upon

insufficient evidence and Kevin was released from jail in the end of May.

While Kevin was in jail, Rita claimed he was stalking her, prompting the

Division to order a psychological evaluation. She refused individual therapy, as

did Kevin. The couple's drama continued after Kevin's release when Rita again

alleged Kevin was stalking her, and Kevin charged that Ann was in danger due

to Rita's mental instability. Soon thereafter, in the presence of Division

caseworkers and her daughter Ann, Rita repeatedly threatened to kill Kevin.

On December 8, 2016, contrary to the court's order, Rita took Ann and

Anita to an unsupervised visit with Edward. During this visit, Edward

threatened to choke and kill Rita. Edward was subsequently arrested, convicted,

and incarcerated for his terroristic threats. Rita obtained a temporary restraining

order against Edward. Unfortunately, the family hosting Rita demanded she and

the girls leave their home because of Edward's unsupervised visit. Thus, an

emergent removal – with Rita's consent – of the girls occurred because she did

not have a place to take them. The girls were placed in a prior resource home,

where they have remained since. The resource parents hope to adopt them.

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B. Trial

1. The Division's Case

During the eight-day guardianship trial, the Division presented the

testimony of an expert and a Division caseworker. Dr. Alan J. Lee, a clinical

forensic psychologist with a specialty in child abuse and neglect, testified

regarding his psychological evaluations of Kevin and Edward, as well as his

bonding evaluations of each child with the respective fathers and with the

resource parents. Caseworker Kamise Thompson spoke about her involvement

with the family, and the services provided to Kevin and Edward, consistent with

the documentation in the record.

2. Kevin's Case

To refute the Division's contentions, Kevin presented the expert testimony

of Dr. Janet Cahill, a licensed psychologist and Director of the Child Family

Resource Center, and Dr. John Quintana, a licensed psychologist and expert on

psychology and therapeutic visitation. Dr Cahill evaluated Rita and opined that

Rita's constant questioning of Ann regarding Kevin's alleged sexual abuse

caused Ann to accuse him in order to satisfy Rita's scheme against him. That

said, Dr. Cahill's bonding evaluation with Ann, Anita, and the resource parents

determined the children needed the permanency afforded through adoption, and

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removal from the resource parents would present an enduring risk of harm to

them. Dr. Quintana evaluated the therapeutic visits between Kevin and Ann that

took place before Jan Rosenstein, a licensed clinical social worker, child trauma

specialist, and family counselor with Child Teen Adult Matters Co, LLC. He

claimed Ann seemed relaxed during their visits but explained she sometimes

cancelled sessions because she did not want to see Kevin, which eventually

resulted in visits being stopped.

Kevin sought to admit an ex parte letter written by a Division supervisor

to a different court that was presiding over a related abuse and neglect litigation3

involving defendants. The letter expressed concerns that Kevin was being

treated unfairly. The court received the letter, but did not read it, and distributed

copies to all parties. The letter reads:

Your Honor,

My name is Treasure Esochaghi. I am the Adolescent
Supervisor at the Atlantic East DCP&P here in the City.
I am writing you this letter due to some concerns that I
have come to observe on the above mentioned FN case.
The case was transferred to my unit in January 2017.

I am attaching a letter written by [Ann] to her teacher
on February 22, [2017,] when she was supposed to meet
with Dr. Quintana and possibly her father if she agrees
to do so. I will also attach my report with regards to

3
The litigation was terminated due to the Division's guardianship complaint.
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the charges made against my worker who went to pick
up [Ann] on that date.

The first sentence on that letter is, "the front office will
call you to say I have a visit with my birth dad." My
concern with this is that we never tell the child that she
is going to have a visit because we are not sure if that
will happen. She is supposed to meet with Dr. Quintana
and both will make the decision whether the child will
see her father or not.

My worker was demonized and actually accused of
threatening and disrupting the school and the child (an
allegation the school denied) because he asked to see
the letter and commented he believed the child may
have been coerced into writing that letter.

My concern with this case is that it appears the child is
in similar situation [sic] that she was with her mother.
Her mother had a vendetta against her father and used
the child in order to achieve her goal. The resource
parents do not like the worker and they have made
horrendous allegations against him and claim it was
from the child. I sent another worker to speak with the
child and the child has no ill-feelings toward her
worker. Unfortunately, it appears all systems involved
are bent on ensuring that [Kevin] never has any
relationship with his daughter.

I had the case when the mother was allegedly being
stalked by the father even though he was incarcerated
at the same time. The child went along with her
mother's story but when my worker then asked her, she
admitted to never seeing her father but saying what her
mother wants her to say.

Children are not trophies and advocacy is not lying and
manipulating. I do not believe [Ann] is being

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emotionally helped in her current placement. (I am not
saying the resource parents are bad people.) I say this
because the foster parents are projecting their dislike
unto her just like her mother did with regards to her
father. They are so enmeshed that they believe this is
their case. The unfortunate thing about this is that
almost every system that is involved in this case is
supporting that. It is very scary to think that the
systems that are put in place to ensure well-being of
children can be so biased they made decisions based on
fronts and emotions.

I am reaching out to you because I believe you are
impartial and will not be swayed by the shenanigans
that are being presented on this case. [Ann] may never
get over the brainwashing but she needs an opportunity
to try. [Kevin] may never get his child back but needs
an opportunity to at least have a relationship with her.

I am a licensed social worker and a Master Level
Therapist and I have been on this job since 2004. This
is my first time of seeing foster parents go to this length
to adopt children.

If you have any questions . . . .

At the guardianship trial, the court refused to admit the letter, stating the

prior court had already "rejected" it and refused to read it because it was an ex

parte communication. Nonetheless, the court admitted annexed Division contact

sheets expressing many of the same concerns set forth in the letter. The court

also denied Kevin's reconsideration motion to admit the letter, explaining that

A-5639-17T4
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no new information had been provided in support of the motion for

reconsideration. The court also stated the letter "is in fact a hearsay document."

3. Edward's Case

In his defense, Edward presented the expert testimony of Dr. Gerard

Figurelli, a clinical forensic psychologist and alcohol and drug counselor with

an expertise in parental capacity and bonding. Based upon his psychological

evaluation of Edward and bonding evaluation between Edward and Anita, the

doctor opined that Edward had no diagnosable psychiatric illness and there were

no impediments to Edward's parenting capacity in the future. However, because

Edward never cared for Anita, and did not have a stable residence or plan for

raising her, Dr. Figurelli stated Edward was not able to parent immediately and

would require a gradual transition to do so. Dr. Figurelli further testified that

Anita has a "positive but limited attachment" to her farther, and there would be

a risk of severe and enduring harm if she permanently separated from him.

Also testifying for Edward was Jasmine Small, an activity coordinator

who monitors parent child visits for the Center for Family Services, a non-profit

organization funded by the Division. Small discussed Edward's participation in

visits with Anita and his successful completion of parenting education classes.

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She claimed Anita always seemed happy to visit with Edward and that they

appeared to have bonded.

Edward testified on his own behalf regarding his income and ability to

support Anita if he were awarded custody. He admitted he lived with his aunt

and uncle, who were unwilling to allow Anita to move-in, but claimed he had a

large family support system that could assist in caring for her and was looking

into alternative residences. He testified he would allow Anita to continue to

have contact with Ann.

4. The Law Guardian's Case

The Law Guardian presented expert testimony to support its position that

the fathers' parental rights should be terminated. Dr. JoAnne Gonzalez, a

psychiatrist and expert in clinical and forensic psychology with a specialty in

child abuse and neglect, performed a psychological evaluation of Kevin, a

bonding evaluation between Kevin and Ann, and a bonding evaluation of Ann

with the resource parents. She believed Kevin was purposefully deceitful, and

wanted his oldest daughter to care for Ann.4 Dr. Gonzalez recommended

termination of Kevin's parental rights based upon her assessment that Kevin has:

4
Kevin is the father of eleven children with seven women. There is no
indication in the record that he had custody of any of these children.

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(1) a personality disorder with narcissistic antisocial traits; (2) an impulse

control disorder; (3) an inability to empathize; and (4) mental health concerns

that are unlikely to change. She further stated that Ann associates "chaos" with

Kevin, making him unable to capably parent. Regarding her bonding evaluation

between Kevin and Ann, Dr. Gonzalez testified it was clear there was "great

tension" between them, and that Ann did not feel safe with him. With respect

to Ann's bonding with her resource parents, Dr. Gonzalez concluded there was

a strong and secure bond, and they would be able to ameliorate any harm to Ann

from her separation from Kevin, whereas Kevin would be unable to ameliorate

the harm to Ann if she were separated from them.

Following trial, the court issued an order based on reasons set forth in an

oral opinion that the Division had proven, by clear and convincing evidence, all

four prongs of the statutory best interests test under N.J.S.A. 30:4C-15.1(a) to

terminate Kevin's parental rights to Ann, and Edward's parental rights to Anita.

II.

In their respective appeals, Kevin and Edward both contend the Division

failed to prove the best interests test to terminate their parental rights by clear

and convincing evidence. Kevin asserts none of the test's four prongs were

proven by the Division, whereas Edward limits his challenge by arguing the

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Division did not prove the first three prongs of the test.5 None of these

contentions have merit.

Our scope of review in Title 30 guardianship cases is limited. The trial

court's findings in such cases generally should be upheld so long as they are

supported by "adequate, substantial, and credible evidence." N.J. Div. of Youth

& Family Servs. v. R.G., 217 N.J. 527, 552 (2014). The court's decision should

only be reversed or altered on appeal if its findings were "so wholly

unsupportable as to result in a denial of justice." N.J. Div. of Youth & Family

Servs. v. P.P., 180 N.J. 494, 511 (2004). We must give substantial deference to

the trial judge's opportunity to have observed the witnesses first-hand and to

evaluate their credibility. R.G., 217 N.J. at 552. We must also recognize the

expertise of the Family Part in matters involving the alleged abuse or neglect of

children. See, e.g., N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420,

448 (2012); N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451,

476 (App. Div. 2012).

5
Edward's initial merits brief does not argue the court erred in determining the
Division satisfied the fourth prong of the best interests test, but he does so in his
reply merits brief. Because "[a]n appellant may not raise new contentions for
the first time in a reply brief," we do not consider the argument. L.J. Zucca, Inc.
v. Allen Bros. Wholesale Distribs., Inc., 434 N.J. Super. 60, 87 (App. Div.
2014). Nonetheless, we briefly mention and reject the contention in footnote 6.
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Applying these principles, we separately address each prong of the best

interests test challenged by defendants' appeals.

A. Prongs One and Two

As to prong one, the Division must prove "[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). The Division has the 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," which may require the severance of parental ties as a "weapon of last

resort." F.M., 211 N.J. at 447. "[T]he relevant inquiry focuses on the

cumulative effect, over time, of harms arising from the home life provided by

the parent." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289

(2007).

"Serious and lasting emotional or psychological harm to children as the

result of the action or inaction of their biological parents can constitute injury

sufficient to authorize the termination of parental rights." In re Guardianship of

K.L.F., 129 N.J. 32, 44 (1992) (citing In re Guardianship of J.C., 129 N.J. 1, 18

(1992)). As a result, "courts must consider the potential psychological damage

that may result from reunification[,] as the 'potential return of a child to a parent

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may be so injurious that it would bar such an alternative.'" L.J.D., 428 N.J.

Super. at 480-81 (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J.
591, 605 (1986)). The Division "must show that the alleged harm 'threatens the

child's health and will likely have continuing deleterious effects on the child.'"

F.M., 211 N.J. at 449 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 352

(1999)). "The absence of physical abuse or neglect is not conclusive." A.W.,

103 N.J. at 605 (quoting In re Guardianship of R., 155 N.J. Super. 186, 194

(App. Div. 1977)). "A parent's withdrawal of . . . solicitude, nurture, and care

for an extended period of time is in itself a harm that endangers the health and

development of the child." In re Guardianship of DMH, 161 N.J. 365, 379

(1999). "Courts need not wait to act until a child is actually irreparably impaired

by parental inattention or neglect." Id. at 383.

As to prong two, the Division must prove that "[t]he parent is unwilling

or unable to eliminate the harm facing the child[ren] or is unable or unwilling to

provide a safe and stable home . . . and the delay of permanent placement will

add to the harm." N.J.S.A. 30:4C-15.1(a)(2). That harm may include evidence

that separating the children from their resource parents "would cause serious and

enduring emotional or psychological harm . . . ." Ibid.

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The Division can establish the second prong by proving that a "child will

suffer substantially from a lack of stability and a permanent placement[,] and

from the disruption of" a bond with the resource parents. K.H.O., 161 N.J. at
363. Because they are related, evidence supporting the first prong may also

support the second prong "as part of the comprehensive basis for determining

the best interests of the child." DMH, 161 N.J. at 379.

1. Kevin

Kevin argues the court erred in finding he exposed Ann to harm or the risk

thereof. He alleges Ann's fear of him and his inability to eliminate this fear, is

not harm within the meaning of prong one. Because he did not cause Ann's fear

of him, Kevin maintains he should not be required to mitigate the fear as

required by prong two. He also argues his failure to complete services did not

harm Ann.

Based on the court's credibility findings regarding the witnesses'

testimony, and the facts surrounding the incidents that prompted Ann's fears of

Kevin, there is clear and convincing evidence to support the court's

determination that continuing Ann's father and daughter relationship with Kevin

would harm her based on his history of being unable to provide a safe home to

A-5639-17T4
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properly nurture and care for her. Kevin has not refuted the Division's evidence

that he is unable to establish a safe and stable home for Ann.

The court further determined Kevin harmed Ann, crediting Drs. Lee and

Gonzalez' opinions that the totality of Kevin's conduct caused harm to Ann

because she was fearful and anxious around him despite therapeutic visits

intended to assuage that fear. Kevin's argument that he did not cause this harm

is unsupported by the record, which documents his frequent outbursts and

antagonism toward Ann that he cannot control. For example, he repeatedly

called Ann a "liar" regarding her allegations of sexual assault. It is beyond

difficult to understand how a father can raise a child under the cloud of this

hostility.

Kevin's assertion that the possibility of future harm does not satisfy prong

one is contradicted by our case law, specifically F.M. and DMH. While he did

complete some services, including drug and alcohol rehabilitation while

incarcerated, Kevin's failure to complete all the offered services resulted in his

absence from Ann for long periods of time during which time she bonded with

the resource family.

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2. Edward

Edward argues the court erred in finding the Division satisfied the first

prong because his drug usage (marijuana) did not harm Anita and the record did

not demonstrate that his propensity for violence and rule-breaking would

endanger her. He also argues he was committed to cease all drug use if Anita

was under his sole care.

Credible evidence in the record demonstrates Edward failed to complete

several substance abuse evaluations, and he acknowledged his ongoing

marijuana use. His drug use, together with the likelihood of violent criminal

recidivism, place him at increased future risk of incarceration, which, if Anita

was under his sole care, would render her without a caregiver and expose her to

harm. Contrary to Edwards' assertion, drug use was not the sole reason

considered by the court in terminating his parental rights. Significant to the

court's order was his terroristic threats to Rita in December 2016, which caused

Anita harm and prompted her second emergency removal.

We see no basis to reject the court's reliance on Dr. Lee's opinion, given

within a reasonable degree of psychological certainty, that Edward's twenty-

year-old conviction for manslaughter of his father and his other negative

personality traits demonstrated the potential for recidivism and future harm to

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Anita. Edward's assurances that he would stop using drugs if awarded custody,

is undermined by his repeated positive urine screens. This, in turn, reflects his

inability to eliminate harm to Anita, and places him at risk for incarceration and

the goal of permanency. In fact, his own expert, Dr. Figurelli, recognized

Edward was unable to provide Anita with a safe and stable home at the time of

the evaluation and would require additional time to do so.

B. Prong Three

As to prong three, the Division is required to make "reasonable efforts to

provide services to help the parent correct the circumstances which led to the

child's placement outside the home[,] and the court [will] consider[] alternatives

to termination of parental rights[.]" N.J.S.A. 30:4C-15.1(a)(3). This prong

"contemplates efforts that focus on reunification of the parent with the child and

assistance to the parent to correct and overcome those circumstances that

necessitated the placement of the child into foster care." K.H.O., 161 N.J. at
354.

The Division must prove that it "has made reasonable efforts to provide

services to help the parent correct the circumstances which led to the child's

placement outside the home." N.J.S.A. 30:4C-15.1(a)(3). "Reasonable efforts"

include, but are not limited to:

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(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).]

"Whether particular services are necessary in order to comply with the

[reasonable] efforts requirement must . . . be decided with reference to the

circumstances of the individual case before the court[.]" DMH, 161 N.J. at 390.

The Division

must encourage, foster and maintain the bond between
the parent and child as a basis for the reunification of
the family. [It] must promote and assist in visitation
and keep the parent informed of the child's progress in
foster care. [It] should also inform the parent of the
necessary or appropriate measures he or she should
pursue in order to continue and strengthen that
relationship and, eventually, to become an effective
caretaker and regain custody of his or her children.

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

A court is required to consider alternatives to the termination of parental

rights. N.J.S.A. 30:4C-15.1(a)(3). "[A]ssessment of relatives is part of the

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Division's obligation to consult and cooperate with the parent in developing a

plan for appropriate services that reinforce the family structure." N.J. Div. of

Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 583 (App. Div. 2011).

N.J.S.A. 30:4C-12.1(a) requires the Division to initiate a search for

relatives who may be willing and able to provide the care and support required

by the child within thirty days of accepting a child into its care or custody. The

Division must assess each interested relative and, if it determines that the

relative is unable or unwilling to care for the child, inform them of its reasons

for a denial of placement. N.J.S.A. 30:4C-12.1(a)-(b).

"It is the policy of [the Division] to place, whenever possible, children

with relatives when those children are removed from the custody of their

parents." N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J. Super. 623, 636

(App. Div. 2002). "The Division's statutory obligation does not permit willful

blindness and inexplicable delay in assessing and approving or disapproving a

relative known to the Division[.]" K.L.W., 419 N.J. Super. at 582. It cannot

ignore relatives "based upon an arbitrary, preordained preference for the foster

placement" and "must perform a reasonable investigation of . . . relatives that is

fair, but also sensitive to the passage of time and the child's critical need for

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finality and permanency." N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J.

Super. 69, 87 (App. Div. 2013).

1. Kevin

Kevin argues the court erred in finding the Division established the third

prong because the Division did not provide reasonable efforts to assuage Ann's

fear of him. He does not allege the Division failed to consider alternatives to

the termination of his parental rights.

Credible evidence in the record supports the court's findings that the

Division offered therapeutic visitation, psychological and bonding evaluations,

anger management counseling, parenting skills classes, and individual therapy

to Kevin. Despite these services, Drs. Lee and Gonzalez opined Kevin was still

not a suitable placement option for Ann. The record demonstrates the Division

allowed Kevin to foster a parental relationship with Ann. Yet, Ann repeatedly

refused to see him due to her deep-seated and ongoing fear of Kevin, which as

noted was in-part caused by Kevin's on-going behavior when interacting with

Ann.

2. Edward

Edward argues the Division failed to provide reasonable efforts toward

reunification, and failed to consider placing Anita with his sister, T.C. Credible

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evidence in the record refutes this assertion. T.C. was properly ruled out as a

placement option because of the harm that would occur from separating Ann and

Anita. Shorty, after Anita's birth in January 2016, T.C.'s impending surgery

precluded placement for months. Anita's reunification with Rita shortly

thereafter in late 2016, eliminated the need for placement with T.C. When

Edward's terroristic threats necessitated a second emergency removal in

December 2016, T.C. was considered, but Ann and Anita had bonded

significantly during their year in the resource home and needed to remain

together.

Edward's contention that the bond between Ann and Anita is not sufficient

to overcome his right to parent Anita and that he would allow them to have

contact if he were awarded custody of Anita overlooks the evidence, including

Dr. Cahill's opinion, which emphasizes the especially strong bond between Ann

and Anita that started when Ann was notified of Rita's pregnancy with Anita.

Their placement together since Anita's birth, which was cemented after their

host family discontinued hosting them and Rita in 2016 due to Edward's threats,

serves as valuable stability in their lives. See New Jersey Division of Youth &

Family Services v. D.M., 414 N.J. Super. 56, 80 (App. Div. 2010) (holding that

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bonds with others can support termination of parental rights where the biological

parent is responsible for a delay in reunification).

C. Prong Four

Under prong four, the Division must demonstrate by clear and convincing

evidence that "[t]ermination of parental rights will not do more harm than good."

N.J.S.A. 30:4C-15.1(a)(4). The prong focuses on the important consideration

of a child's need for permanency. M.M., 189 N.J. at 281. "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 her natural parents than from the permanent disruption of her relationship

with her foster parents." K.H.O., 161 N.J. at 355. In order to weigh any

potential harm from terminating parental rights against a child's separation from

his or her foster parents, a court must consider expert testimony on the st rength

of each relationship. J.C., 129 N.J. at 25. "[W]here it is shown that the bond

with foster parents is strong and, in comparison, the bond with the natural parent

is not as strong, that evidence will satisfy . . . N.J.S.A. 30:4C-15.1(a)(4)."

K.H.O., 161 N.J. at 363.

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1. Kevin

Kevin argues the court erred in finding the Division established the fourth

prong because termination of his parental rights would do more harm than good,

and he was not given a sufficient opportunity to mend his relationship with Ann.

As with the other prongs, credible evidence in the record supports the

court's findings regarding the fourth prong of the best interests test. We see no

wrong in the court's credit of the opinions of Drs. Lee and Gonzalez that Ann

would be relieved if her relationship with Kevin were severed. Their testimony

firmly established Ann had significant and positive bonds with the resource

parents, but an avoidant and insecure attachment to Kevin, despite several

attempts through therapeutic visitation to remedy Ann's disaffection towards

him. Kevin's assertion that he was not given an opportunity to mend his

relationship with Ann is undermined by the therapeutic visits. Dr. Lee's

testimony made clear there is a low risk of Ann experiencing harm if her

relationship with Kevin was terminated. We also find favor with the court's

finding that keeping the sisters together and giving them some permanency were

of prominent concern. See N.J.S.A. 9:6B-4.6

6
As mentioned above in footnote 5, we do not address Edward's argument
regarding the fourth prong because it was belatedly raised in his reply brief.

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III.

Lastly, we address Kevin's claim that the court erred in refusing to admit

into evidence an ex parte letter to the abuse and neglect court by a Division

supervisor alleging the resource parents infected their dislike of him on Ann.

We conclude the court did not abuse its discretion in refusing to admit the letter

into evidence. See Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016)

(alteration in original) (quoting State v. Brown, 170 N.J. 138, 147 (2001))

("When a trial court admits or excludes evidence, its determination is 'entitled

to deference absent a showing of an abuse of discretion, i.e., [that] there has

been a clear error of judgment.'").

The letter was an ex parte communication to the court and the other parties

in the case did not have the opportunity to respond to the allegations contained

therein. Because the author did not testify at trial, the Division had no

opportunity to cross-examine her regarding its numerous unproven statements

suggesting Ann was coached, or that she did not truly oppose visits with Kevin.

Accordingly, the letter was properly excluded from evidence under our Code of

Nonetheless, his argument is without merit based upon the court's reliance on
the credible testimony of Dr. Lee that Anita had no bond with Edward and
termination of Edward's parental rights would not do more harm than good, and
the resource parents would be able to ameliorate any harm that might occur.
A-5639-17T4
25
Judicial Conduct and evidence rules pertaining to hearsay. Code of Judicial

Conduct Rule 3.8 ("Except as authorized by law or court rule, a judge shall not

initiate or consider ex parte or other communications concerning a pending or

impending proceeding."); N.J.R.E. 801(c) (defining hearsay as "a statement,

other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted"). The letter does

not fall within the business records hearsay exception because it was not written

in the regular course of the Division's business but seems to have been written

in response to a situation which the author observed for the "first time" in her

career. See N.J.R.E. 803(c)(6). There is no indication it is the regular practice

of the Division to send such letters, as the Division's concerns are typically

recorded in contact sheets.

Additionally, Kevin misplaces his reliance on In re Civil Commitment of

J.M.B., 395 N.J. Super. 69, 93 (App. Div. 2007), in claiming the letter should

have been admitted because Dr. Gonzalez reviewed it in the course of her

evaluations. J.M.B. merely holds that such documents are often admitted and

does not specifically call for their unfettered admission. Ibid. Significantly,

there was minimal prejudice to Kevin through the letter's exclusion, since

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26
caseworker Thompson testified about the Division's contact sheets, which

contained much of the same information discussed in the letter.

Affirmed.

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27

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