Opinion
DOCKET NO. A-4991-13T3 DOCKET NO. A-4992-13T3 DOCKET NO. A-2104-14T3
01-04-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. H.R., Sr., and F.D., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF H.R., Jr., J.R. and R.R., Minors. NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Appellant, v. H.R., Sr., and F.D., Defendants-Respondents. IN THE MATTER OF THE GUARDIANSHIP OF H.R., Jr., D.D., F.D., J.R. and R.R., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant H.R., Sr. in A-4991-13 (Kourtney J.A. Knop, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant F.D. in A-4992-13 (Jennifer M. Kurtz, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency in A-4991-13 and A-4992-13 (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Marlene Botros, Deputy Attorney General, on the brief). John J. Hoffman, Acting Attorney General, attorney for appellant New Jersey Division of Child Protection and Permanency in A-2104-14 (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lauren J. Oliverio, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors H.R., Jr., J.R. and R.R. in A-4991-13, A-4992-13, and A-2104-14 (Sean Lardner, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Submitted (A-4991-13 and A-4992-13) September 21, 2015 and Submitted November 30, 2015 (A-2104-14) Before Judges Messano and Simonelli. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-118-13. Joseph E. Krakora, Public Defender, attorney for appellant H.R., Sr. in A-4991-13 (Kourtney J.A. Knop, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant F.D. in A-4992-13 (Jennifer M. Kurtz, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency in A-4991-13 and A-4992-13 (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Marlene Botros, Deputy Attorney General, on the brief). John J. Hoffman, Acting Attorney General, attorney for appellant New Jersey Division of Child Protection and Permanency in A-2104-14 (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lauren J. Oliverio, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors H.R., Jr., J.R. and R.R. in A-4991-13, A-4992-13, and A-2104-14 (Sean Lardner, Designated Counsel, on the brief). PER CURIAM
In A-4991-13 and A-4992-13 respectively, defendants H.R., Sr. (Harold) and F.D. (Felicia) appeal from the Family Part's June 4, 2014 order (the June 2014 order) that terminated their parental rights to their children, H.R., Jr. (Harvey), J.R. (Joseph) and R.R. (Roy). In A-2104-14, the New Jersey Division of Child Protection and Permanency (the Division) appeals from the same order that denied a judgment of guardianship as to defendants' two other children, F.D. (Fay) and D.D. (Doris). The Division also appeals from the Family Part's order of December 16, 2014 (the December 2014 order), that denied the Division's motion for reconsideration and dismissed the guardianship complaint. We have consolidated these appeals for the purpose of issuing a single opinion.
We use pseudonyms to protect the privacy of those involved.
Harold and Felicia essentially contend that the Division failed to prove by clear and convincing evidence all four prongs of the statutory best interests test, N.J.S.A. 30:4C-15.1(a), and urge us to reverse the June 2014 order terminating their parental rights. The Division argues otherwise, as does the Law Guardian for Harvey, Joseph and Roy.
In its appeal, the Division contends that the judge erred by finding the Division failed to prove the fourth prong of the statutory test as to Fay and Doris, i.e., that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The Division also argues that the judge should have reconsidered her earlier order based upon "new information" that "emerged after trial." The children's Law Guardian agrees with the Division's arguments, while Harold and Felicia reiterate their contentions that the Division's proofs were inadequate as to all four prongs.
We have considered these arguments in light of the record and applicable legal standards. We affirm those provisions of the June 2014 order under review in A-4991-13 and A-4992-13 that terminated defendants' parental rights to Harvey, Joseph and Roy. In A-2104-14, we reverse the December 2014 order that denied the Division's motion for reconsideration and terminated the guardianship litigation. We remand the matter to the Family Part for further proceedings consistent with this opinion.
I.
Felicia is the biological mother of nine children, the five youngest of which were fathered by Harold and are the subjects of this appeal. The Division has been involved with the family since 1993 and received numerous referrals over the years. After the birth of Roy in 2009, Felicia suffered liver failure and remained hospitalized. When Harold arrived at the hospital in an inebriated state, he needed access to Felicia's belongings in order to obtain money to buy food. The Division's visit to the home revealed it was infested with vermin and roaches and lacked any food. Felicia's older children were also in the home at the time, including J.D. (Joan), who was nearly twelve and suffered from severe cognitive delays. Joan was receiving Social Security Disability benefits, as was Felicia.
Harvey was born in 2003, Doris in 2004, Fay in 2006, Joseph in 2008 and Roy in 2009.
From 2009 to 2011, the Division provided numerous services to the family, including homemaker services on a daily basis. The Division continued to receive reports that Felicia was unable to control the children and constantly needed to be reminded of her parental responsibilities regarding the children's hygiene and medical care. The physical state of the home was abysmal. Harold frequently drank and was occasionally confrontational with the homemakers. He would sometimes be absent from the home for months at a time.
Psychological evaluations in 2009 revealed that neither Harold nor Felicia were able to effectively parent the children, and that Felicia was "cognitively-limited," and "overwhelmed, ineffective, unmotivated, and lacking in parenting skills." Early attempts to have Harold enroll in substance abuse counseling were unsuccessful because he refused to attend the appointments. By March 2011, Harold was serving a five-year prison sentence with a three-and-one-half-year period of parole ineligibility for a drug offense. He was incarcerated at Southern State Correctional Facility, more than two hours from the family's home in Jersey City.
Later in the litigation, Felicia was evaluated at the University of Medicine and Dentistry of New Jersey (UMDNJ) in order to determine whether she suffered from fetal alcohol syndrome. Subsequent genetic testing revealed that Felicia had an extremely rare chromosomal disorder which caused, among other things, learning disabilities. UMDNJ performed another examination that indicated Felicia was deficient in all educational areas (reading, writing, mathematics, etc.), performing at the level of a child in the first or second grade. She had trouble reading common signs and warning labels. Additional testing revealed that Joan, Doris and Fay all possessed the same chromosomal disorder as their mother.
On June 14, 2011, at approximately 7:00 p.m., the Division received a referral that the five youngest children were running in the street partially or totally naked. The caller reported that Joseph had almost been hit by a car twice, and that a teenage girl with apparent special needs seemed to be in charge of the children. Investigation revealed that Felicia left the children hours earlier with Joan and her older sister, but eventually Joan was left alone with them and could not control the children. The home was dirty and contained no food or furniture, except beds for the children. The Division workers substantiated a finding of neglect against Felicia, removed the children from the home and placed them with foster families. Felicia was arrested for endangering the welfare of her children and remanded to the county jail. The Division filed a verified complaint seeking care, custody and control of eight of Felicia's nine children.
During the ensuing months, the Division learned that one of Felicia's older daughters, not the subject of this appeal, claimed Harold had sexually abused her, and that Felicia knew of it and had witnessed the abuse on one occasion, but failed to stop it. In October, Felicia stipulated to a finding of abuse and neglect, and the judge ordered the Division to file an amended complaint adding these sexual abuse allegations against Harold. At a fact-finding hearing in April 2012, the judge determined that Harold had sexually abused Felicia's older daughter.
On July 11, 2012, the court approved the Division's permanency plan to terminate parental rights. In a subsequent permanency order entered in June 2013, the court approved the following permanency plan regarding the five children: as to Roy, termination followed by adoption by the resource parent with whom he had been placed since the litigation commenced; as to Harvey and Joseph, termination followed by adoption by their current resource family; and, as to Fay and Doris, termination followed by select home adoption.
Three of Felicia's other children were originally subjects of the complaint but were all dismissed from the litigation at some point. They are not subjects of these appeals.
The guardianship trial commenced in March 2014. The Division's psychological expert, Dr. Frank Dyer, testified regarding the evaluations he made of Harold and Felicia, as well as the various bonding evaluations he conducted. We briefly summarize.
Dyer confirmed earlier evaluations regarding Felicia's intellectual functioning, which corresponded to that of a child five years and seven months of age. She lacked functional literacy, reading at just a second-grade level. Felicia denied and minimized risks to the children while under her care, and failed to appreciate her own limitations or that her children had special needs. Dyer also concluded that Felicia lacked insight into and accepted no responsibility for the children's removal in June 2011. Felicia insisted that her older daughter had lied about being sexually abused by Harold.
Dyer concluded that Felicia was cognitively impaired and, as a result, passive and dependent. To maintain a household, she affiliated with unsuitable partners who provided some material comforts in the short term, but ended up abusing her and placing her children at risk of harm. Dyer opined that no support services could be provided to enable Felicia to effectively parent her children because she was unable to consistently feed, house, clothe and protect them. Felicia also could not co-parent, because even if another adult were available to assist her, that person would assume the primary caretaking role and need to supervise Felicia's contact with her children.
In June 2013, Dyer evaluated Harold at Tully House, a halfway house where he was residing after release from prison. Harold detailed an extensive history of substance and alcohol abuse which, among other things, had resulted in him spending twenty of his forty-eight years behind bars. Dyer testified that Harold claimed to be presently drug- and alcohol-free and working on maintaining his sobriety. Harold denied sexually abusing Felicia's daughter.
Harold told Dyer that he needed time to put his life together after his release, but preferred that the children be returned to Felicia in the interim because she had been a good mother who had taken good care of them. Dyer opined that Harold had a prominent antisocial dimension to his personality that placed him at great risk of recidivism, and presented a tremendous obstacle to Harold's ability to consistently parent a child. His addiction issues were another obstacle. Because Harold's life pattern had been to revert to drug and alcohol use when released from prison, Dyer was convinced that Harold would need at least a year of sobriety after release, followed by a reassessment, before this concern could be allayed.
Dyer further stated that Harold had not been available to his children for an extended period of time, did not grasp their special needs and had no plan for how to address them. Dyer believed that the stress of caring for so many special needs children, in addition to the stress of trying to manage his own affairs in a socially responsible manner, could derail Harold's rehabilitation and cause him to relapse. In Dyer's opinion, Harold was not an appropriate candidate for custody of any of the children.
Dyer testified regarding the bonding evaluation he conducted between Felicia and the five children. During the session, the children were wild and disobedient, Felicia was incapable of organizing and redirecting them, and she remained mostly passive and uninvolved. Dyer also performed a bonding evaluation with Harold and the children at Tully House. Harold was appropriate, affectionate and more competent than Felicia, but even with the help of the Division caseworker he was ineffective at redirecting the children's wild behaviors.
Dyer also testified regarding the bonding evaluation he conducted with Roy and his foster mother. Dyer concluded that the foster mother was Roy's psychological parent, and that Roy's difficulties had improved while in her custody. In Dyer's opinion, it would traumatize Roy and cause him severe and enduring harm if he were removed from his foster mother. By contrast, Roy was not deeply attached to either of his birth parents.
Dyer also performed a bonding evaluation with Harvey and Joseph and their foster mother, with whom the children were placed in August 2013, after being transferred from another foster home. Harvey suffered from Attention Deficit, Hyperactivity Disorder (ADHD), hyperactive impulsive type, and displayed an extremely high degree of oppositional behavior. Harvey had been neglected and traumatized by exposure to domestic violence and drug abuse, and Dyer opined that he needed permanency. It would be in Harvey's best interests to be adopted by his current foster mother. Dyer acknowledged that severing Harvey's relationship with his birth parents would be painful, but, with the support of his foster mother and adoption counseling, any harm to Harvey would be mitigated.
Joseph had greater special needs than Harvey. The child was diagnosed with ADHD, experienced problems with language and displayed oppositional and aggressive behavior, including attacking other children at school. Because he was removed from his biological parents at a very young age, Dyer believed the child never formed a lasting attachment to either Felicia or Harold. If Joseph were returned to his biological parents he would suffer a very serious regression in his behavior and learning because of the disruption in continuity of care. Dyer opined that it would be in Joseph's best interests to be adopted by his current foster mother, whose maturity and competency would help him with his behavior, self-esteem, impulse control and emotional security.
Dyer also testified regarding an adoptability evaluation he conducted as to Fay and Doris, who had been placed together in a series of foster homes since removal, and, at the time of trial, had no adoptive parents in waiting. Dyer noted that both girls displayed "sexualized behavior" that was "most disturbing to the adults who [were] caring for [them]." However, Dyer opined that their "special needs" were "relatively minor in comparison to the typical picture of a child who's classified as unadoptable." Dyer further opined that both girls would "blossom" with the right caretakers who would commit to working with them.
Dana DiPalo, the Division's caseworker, testified regarding the various services provided to Felicia, as well as the Division's ultimately unsuccessful efforts in assessing relatives and friends provided by Harold and Felicia as potential placement resources. DiPalo described the supervised visitation the Division provided to Felicia, and the record contains documentary evidence demonstrating that the children had routine visitation with Harold while he was in custody.
DiPalo testified that Felicia remained homeless at the time of trial, and Harold had not provided the Division with his address in violation of prior court orders. DiPalo further explained her efforts in attempting to provide housing assistance to Felicia.
On the last day of trial, counsel advised that Harold was living in a homeless shelter in Jersey City.
DiPalo confirmed that the two foster parents wanted to adopt Harvey, Joseph and Roy. Both DiPalo and Karen Backiel, another Division worker, testified that, since Doris's and Fay's current foster family did not wish to adopt them, the Division's plan was select home adoption. Backiel explained in detail how the National Adoption Exchange System operated, and that one family had been identified as a possible adoptive home. However, Backiel noted that Fay and Doris had once again recently been "moved to a new family." The record reveals that occurred on March 25, 2014, during the trial and about one week before Backiel's appearance as a witness.
Felicia and Harold did not testify nor produce any witnesses at trial. After consideration of the parties' written summations, the judge rendered her oral opinion on the record terminating Felicia's and Harold's parental rights to Harvey, Joseph and Roy. The June 2014 order denied the Division's guardianship complaint as to Fay and Doris, ordered the two children "to be added back to the FN litigation," and set a management conference before another judge.
On June 24, the Division filed a motion for reconsideration, supported by the certification of the resource parent with whom Fay and Doris had been placed since March 25. She represented a willingness to adopt both girls. The Law Guardian wrote to the judge in support of the Division's motion. Although scheduled to be heard on October 1, the motion was adjourned because Felicia's mother had died. The judge issued an order rescheduling the hearing until December 16, and requiring any objections to be filed in writing by November 1.
On November 18, the Division wrote the judge advising that no objections had been filed and requesting that its motion be granted on the papers. In further support, the Division served a second certification from the resource parent reiterating her desire to adopt Fay and Doris, and setting forth a series of specific dates during which sibling visitation had occurred. Defense counsel for Felicia wrote to the judge on December 15, one day before the return date, and requested that the caseworker appear to testify. Counsel claimed "testimony [wa]s required prior to any written objection."
On December 16, the judge heard brief oral arguments from the Division, and from counsel for Felicia and Harold, both of whom opposed the motion absent a testimonial hearing. The judge denied the motion, explaining her reasoning as follows:
This is a motion for reconsideration of the [c]ourt's decision of June 4, 2014[,] wherein the [c]ourt found that the [Division] had not prove[n] prong four [of the best interests analysis as to Doris and Fay]. . . .
[T]he Division here is not alleging the [c]ourt overlooked [anything] or erred in any way. . . .
[T]he Division maintains there is a change in circumstances. It's not really even new evidence in terms of what was the case at trial. [The] Division is alleging that the girls were placed . . . during the trial in a home which in addition to being a resource or foster home is [now] a pre-adoptive home with parties who wish to adopt both girls. That would be a . . . change that's major since prong four is crucial to a termination case, and the Division would be held to the burden on each prong in a guardianship action which is by clear and convincing evidence. For that reason a motion to reconsider is not appropriate and
the motion is denied with the understanding that the Division is free to file a new guardianship proceeding and it may well be that res judicata applies to . . . prong one and prongs two and three . . . up till the . . . day [of] the judgment. Since the guardianship with regard to [Fay and Doris] was denied[,] the matter reverted to an FN docket number and the Division was still required to provide services to the parents and so forth, so those issues would certainly be issues the Division would have the burden of showing continued — and so forth. So at this point this motion is denied. The Division is free to . . . [f]ile a new guardianship complaint.The judge entered the December 2014 order and the Division's appeal followed.
II.
We are mindful of the well-known principles that guide our review. "The focus of a termination-of-parental-rights hearing is the best interests of the child." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). The Division must prove by clear and convincing evidence:
(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;The four prongs require a fact-sensitive analysis, and "'are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)).
(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N. J.S.A. 30:4C-15.1(a); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]
"We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We defer to the factual findings of the trial judge, who had "the opportunity to make first-hand credibility judgments about the witnesses . . . [and] has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting M.M., supra, 189 N.J. at 293). Moreover, because of "the family courts' special jurisdiction and expertise in family matters," we accord even greater deference to the judge's fact finding. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
A.
When considering the first prong, the court's focus is not "on a single or isolated harm or past harm," but rather "on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. The Division must show "that the alleged harm threatens the child's health and will likely have continuing deleterious effects on the child," but it "does not have to wait until a child is actually irreparably impaired." F.M., supra, 211 N.J. at 449.
Felicia argues there was "no evidence that [she] ever harmed her children." Harold similarly contends there was no proof that he harmed the children, particularly since he was incarcerated when they were removed in June 2011. Both arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). We add only the following.
The judge found the Division's witnesses to be credible. She noted that both parents had been found to have abused or neglected the children, that Harold had been unavailable to parent and nurture them and that he failed to comply with substance abuse treatment until he was incarcerated. The judge found that by exposing the children to a chaotic home environment, Felicia had caused them actual harm, and, given her inability to understand the children's special needs, it was likely the harm would continue. The judge's findings were amply supported by the evidence, and the Division's proofs as to prong one were clear and convincing.
B.
The second prong "relates to parental unfitness," which may be established by demonstrating that "the parent is 'unwilling or unable to eliminate the harm'" or "the parent has failed to provide a 'safe and stable home'" and "a 'delay [of] permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). The inquiry is "whether that parent can raise the child without inflicting any further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), certif. denied, 190 N.J. 257 (2007).
Felicia argues that she complied with almost all services provided by the Division, and the judge specifically found she had made progress. Felicia further contends that the judge's reliance upon Dyer's opinions regarding her inability to parent because of her cognitive limitations was misplaced, because Felicia had cared for the children for many years despite her disability. Harold argues that the judge recognized he was "serious" about his recovery and leading a law-abiding life, but the judge "ignored the possibility of allowing time."
"Mental illness, alone, does not disqualify a parent from raising a child." F.M., supra, 211 N.J. at 450. However, Dyer's opinions confirmed those of other mental health experts that Felicia's limitations exposed the children to actual harm and the likelihood of future harm. The situation is much like that we addressed in New Jersey Division of Youth & Family Services v. I.H.C., 415 N.J. Super. 551 (App. Div. 2010). There, we said "'[a] psychiatric disability can render a parent incapable of caring for his or her children.'" Id. at 585, (quoting N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 94 (App. Div. 2008)). "'That the parents may be morally blameless is not sufficient to tip the scales in their favor.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 436, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002)).
In this case, Felicia's well-intentioned desire to be reunited with her children could not overcome the clear and convincing evidence that she was unable to eliminate the likelihood of continued harm befalling her children. Moreover, contrary to her contentions, the record is clear that the children suffered harm well before the 2011 incident that led to their removal, and her argument that she was capable of providing a healthy environment to them despite her limitations is completely belied by the evidence.
Similarly, Harold may be well-intentioned, but the judge found he remained unable to house and support his children and had no viable plan to redress this situation. "Prong two may also be satisfied if 'the child will suffer substantially from a lack of . . . a permanent placement and from the disruption of [the] bond with foster parents.'" F.M., supra, 211 N.J. at 451 (alteration in original) (quoting K.H.O., supra, 161 N.J. at 363). The Division sustained its burden as to prong two.
C.
Prong three requires that the Division make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home," and that the court "consider[] alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Prong three "contemplates efforts that focus on reunification." K.H.O., supra, 161 N.J. at 354. However, "[e]xperience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship." F.M., supra, 211 N.J. at 452.
The judge concluded that the Division had made diligent efforts for years to assist both defendants by providing a "multitude" of services. The judge also concluded that the Division had explored alternatives to placement but had been hampered by defendants' failure to provide adequate contact information.
Both Harold and Felicia argue that the Division did not provide them with reasonable services, particularly to Harold during his period of incarceration. They further contend that the Division failed to investigate alternative placements with relatives. These arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). The judge's factual findings were amply supported by the evidence, and we find no reason to disturb them.
D.
The statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. Prong four "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609.
In most circumstances, the court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[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," termination may be appropriate. Id. at 363. "[A]fter considering and balancing the two relationships," the question becomes will "the child [] 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[?]" Id. at 355. Answering that question "'necessarily requires expert inquiry specifically directed to the strength of each relationship.'" Ibid. (quoting J.C., supra, 129 N.J. at 25).
Moreover, "courts have recognized that terminating parental rights without any compensating benefit, such as adoption, may do great harm to a child." E.P., supra, 196 N.J. at 109 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610-11 (1986)). "Such harm may occur when a child is cycled through multiple foster homes after a parent's rights are severed." Ibid.
Crediting Dyer's testimony, the judge was satisfied that the Division had met its prong four burden as to Harvey, Joseph and Roy. However, as to Doris and Fay, the judge noted that both girls had recently been placed in yet another foster home, and there was no specific plan in place for their adoption. The judge was not convinced that they would be readily adopted even if they were legally free, noting they were older children who both had numerous special needs and needed to be adopted together. In this regard, the judge found Backiel's testimony to be speculative and unconvincing.
Felicia argues that the three boys had formed a bond with her, that Harvey and Joseph had only been with their foster mother for eight months prior to the June 2014 order and that the boys would be separated and lose access to their siblings. Harold acknowledges his limited bond with the children but contends their separation from their siblings would be harmful.
In this case, the expert testimony was unequivocal. All three boys were doing much better in their foster homes. Roy had essentially known no other family. Harvey and Joseph were improving, had significant attachment to their foster parent and only tenuous attachment to Felicia. The judge's findings were amply supported by the evidence.
We affirm those provisions of the June 2014 order terminating Felicia's and Harold's parental rights to Harvey, Joseph and Roy.
III.
We move on to consider the Division's appeal. With respect to the June 2014 order, the Division argues that the judge correctly found that neither Felicia nor Harold could parent Doris and Fay. It contends, however, that the judge mistakenly relied upon Dyer's opinion that terminating defendants' parental rights would not cause the girls harm, and in concluding that defendants provided some stability in the girls' lives. The Division argues that neither girl had a true attachment to her biological parents, and therefore the judge misapplied the law as to prong four. In particular, the Division argues this case is unlike E.P., supra, where the child was older and maintained a "certain and intense bond to her mother." 196 N.J. at 109-10. Alternatively, the Division argues that its motion for reconsideration should have been granted because it presented new and additional information relevant to the prong four finding. We address the Division's alternative argument first.
It is axiomatic that "[r]econsideration itself is 'a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice[.]'" Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). The remedy is usually reserved for cases where "'1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Ibid. (quoting D'Atria, supra, 242 N.J. Super. at 401). Here, the judge utilized these standards in considering the Division's motion for reconsideration and properly observed that there was no allegation that she had "overlooked [anything] or erred in any way."
However, reconsideration is also appropriate where "'there is good reason for [the court] to reconsider new'" evidence. Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 175 (App. Div. 2005) (quoting Pressler, Current N.J. Court Rules, Comment 2 on R. 4:49-2 (2005)). "[I]f a litigant wishes to bring new or additional information to the [c]ourt's attention which it could not have provided on the first application, the [c]ourt should, in the interest of justice (and in the exercise of sound discretion), consider the evidence." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (emphasis added) (quoting D'Atria, supra, 242 N.J. Super. at 401-02).
In denying the motion, the judge characterized the evidence supporting reconsideration as simply "a change in circumstances." She described the foster mother's certification, which evinced a strong desire to adopt Fay and Doris, as "not really even new evidence . . . ." However, Backiel testified at trial in early April, after the girls had been in the new foster home for less than one week. The judge's oral opinion was issued June 14, after she considered written summations, and more than two months after the trial was completed. Under these circumstances, the foster mother's desire to adopt the children was "new evidence" that could not have reasonably been provided during trial.
Most importantly, in December, when she decided the motion for reconsideration, the judge fully recognized the import of the new evidence as it related to the deficiency in the Division's proof at trial. She stated that Fay and Doris now being in a pre-adoptive home was a "change that's major[,] since prong four is crucial to a termination case." In the end, reconsideration should be exercised "'in the service of the ultimate goal of substantial justice.'" Casino Reinvestment Dev. Auth. v. Teller, 384 N.J. Super. 408, 413 (App. Div. 2006) (quoting Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 264 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)). Under the circumstances presented, we must conclude that the judge mistakenly exercised her discretion by denying the Division's motion for reconsideration.
Our conclusion, however, should not compel reversal of the June 2014 order. In other words, we reject the Division's argument that the prong four proofs at trial alone were sufficient to compel reversal, or that any deficiency was cured solely by the furnishing of a certification from Fay's and Doris's new foster mother. Certainly, the wiser course would have been to permit testimony, something both defendants' counsel requested prior to the judge rendering her decision and denying the motion for reconsideration.
Furthermore, nearly one year has passed since the motion for reconsideration was denied. We have no idea what has transpired in the lives of Fay and Doris during that time. We therefore reverse the December 2014 order and remand the matter to the Family Part for a hearing as to whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). We leave the conduct of the remand to the sound discretion of the Family Part judge, except to say that the court should give a fair opportunity to all parties to conduct the necessary evaluations and present their proofs.
In sum, we reverse the December 2014 order denying the Division's motion for reconsideration, reinstate the Division's guardianship complaint as to Fay and Doris, and remand the matter for further proceedings consistent with this opinion. Following the remand hearing, the judge shall decide whether those provisions of the June 2014 denying termination as to the two girls shall be reversed, and defendants' parental rights to their daughters terminated. In all other respects, we affirm the provisions of the June 2014 order terminating defendants' parental rights to Harvey, Joseph and Roy.
Affirmed in part; reversed in part; and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION