Opinion
A-3261-20
10-31-2022
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.V.S. (deceased), Defendant, and G.L.L., SR., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.C.L. and G.L.L., JR., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Victor E. Ramos, Assistant Deputy Public Defender, of counsel and on the briefs). Matthew J. Platkin, Attorney General, attorney for respondent (Donna S. Arons, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Neha Gogate, Assistant Deputy Public Defender, of counsel and on the brief).
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.
Submitted October 6, 2022
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0152-19.
Joseph E. Krakora, Public Defender, attorney for appellant (Victor E. Ramos, Assistant Deputy Public Defender, of counsel and on the briefs).
Matthew J. Platkin, Attorney General, attorney for respondent (Donna S. Arons, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Neha Gogate, Assistant Deputy Public Defender, of counsel and on the brief).
Before Judges Accurso, Firko and Natali.
PER CURIAM
In this Title 30 guardianship case, G.L.L., Sr. (Gary), the father of J.C.L. (Jane) and G.L.L., Jr., (Greg), appeals from a Family Part order terminating his parental rights, claiming the Division of Child Protection and Permanency (Division) failed to establish clearly and convincingly prongs three and four of the statutory best interests of the child test. The children's mother, J.V.S. (Jill), is not a party to this appeal as she was found dead, and later determined to have been murdered, a crime for which Gary and his brother are under indictment and awaiting trial. The Law Guardian and the Division urge that we uphold the court's decision. After a thorough review of the record, we affirm the order terminating Gary's parental rights.
We use pseudonyms to protect the identities of the parties. R. 1:38-3(d)(12).
I.
Jill is the biological mother of Jane, Greg, and N.S. (Nina). Gary is the biological father of only Jane and Greg. As the record reflects, the Division first became involved with the family in February 2009, when it responded to a referral that Gary abused and neglected Nina and Jane, an allegation the Division ultimately deemed was unfounded. Despite this finding, based on Jill's statements that Gary physically abused her, the Division referred him to an anger management program.
In December 2009, the Division received a referral by Gary that Jill was not properly feeding the children. When Division caseworkers responded to Jill's home, they observed her "swollen" eyes and that she was visibly shaken. While Gary was not residing with Jill at this time, he would still visit her home. Jill stated she was frightened of Gary and showed caseworkers photographs of bruises on her arms and neck she maintained he caused. Jill also stated Gary's family was aware of those incidents of domestic violence. Based on that interview and the Division's further investigation, it recommended Jill receive domestic violence counseling. It also concluded the children were being properly fed and there was no evidence Jill had abused or neglected them.
Between December 2009 and April 2018, the Division remained involved with the family and provided them with necessary services. For Jill, the Division referred her to a domestic violence liaison and counseling, parent/child management programs, and a parent aide to assist her in home organization. Gary was referred to a batterer's program.
In April 2018, the Division responded to another referral, this time involving alleged physical abuse and neglect of Greg. During the ensuing investigation, Greg told a Division caseworker he observed instances of domestic violence between Gary and Jill and stated, "he does not feel safe when [Gary] is in the home." He also revealed he "sleeps in between [his] parents to make sure [his] mother is safe," and disclosed instances when Gary pulled Jill's pants down without her consent.
In May 2018, Jill went missing while attempting to file a restraining order against Gary. Gary and his brother were arrested after video footage revealed Gary carrying a body wrapped in a rug and placing it in a van. He was later indicted and charged with numerous offenses including first-degree murder, robbery, felony murder, burglary, and witness tampering.
At the time Jill went missing, the children's paternal grandmother was caring for them. Due to concerns that she was aware of Gary's prior acts of domestic violence, as well as her possible involvement in Jill's disappearance, Jane and Greg were removed from her, and the Division was granted care, custody, and supervision of both children.
Jane and Greg were initially placed in separate non-relative resource homes until January 2020, when the Division placed them together with Ms. J., where they currently reside. Ms. J. has expressed a desire to adopt both children.
In May 2019, the court permitted visitation between Gary and Jane, but suspended those visits in June, based on, among other concerns, "the emotional harm to the children caused by [Gary's] physical and psychological violence against their mother." The following year both children expressed a desire to contact Gary. To properly assess their wishes, the court held a benchmark hearing in October 2020, with the children and Law Guardians. Prior to the hearing, all parties were permitted to submit questions that they wished the court to ask. Following the proceeding, the court permitted the children to communicate with Gary by sending him letters. Neither child, however, ever wrote to Gary.
Throughout 2018 and 2020, the Division evaluated the children's relatives for potential placement. It ruled out five maternal relatives based on their inability to care for the children, lack of space in their residences, or health issues.
The Division also considered the paternal grandmother twice but ruled her out as a proper placement, first based on lack of appropriate living accommodations, and later because of the pending criminal matter against Gary. As to both rule outs, the Division expressed concern that she may attempt to influence the children's testimony with respect to Gary's trial. Finally, the Division ruled out the children's paternal aunt several times for inadequate living conditions, and because the children did not want to reside with her.
The Division's psychological expert, Dr. Mark Singer, Ed.D., conducted bonding evaluations between the children and Ms. J. in early 2020. Dr. Singer, however, was unable to conduct a bonding evaluation with the children and Gary, as he refused to participate.
Dr. Singer found that both children had a positive relationship with Ms. J. Regarding his evaluation with Ms. J. and Jane, Dr. Singer stated that Jane referred to Ms. J. as "mommy" and that their interaction was "very animated in a positive way." Jane understood what adoption meant, and she indicated to Dr. Singer that she wished to be adopted. Dr. Singer also stated that she "formed a meaningful attachment to Ms. J." and both of them "clearly . . . have a solid foundation for the evolution of future attachment."
As to Greg, Dr. Singer stated that he also referred to Ms. J. as "mom" and he sought her out for "guidance and assistance." He also opined that both children have "a higher . . . need for permanency in comparison with other children," and that "[a]doption by the caregiver, Ms. J., would produce more good than harm for these children because it would provide [them] with the permanency that will benefit them."
The Division's psychological expert in child abuse and neglect, Dr. Anthony D'Urso, Psy.D., conducted psychological evaluations of the children to assess the impact of domestic violence on their emotional functioning. He stated that the children were all affected by their long-term exposure to domestic violence, as well as the trauma of losing their mother. Dr. D'Urso opined that the children "are modeling improper behavior and internalizing the domestic violence," behavior that necessitates achieving "long-term stable permanent relationships" without delay.
During the course of the two-day guardianship trial, the Division relied upon documentary evidence, the testimony of Division case manager, Adamaris Roman, Dr. D'Urso, and Dr. Singer. Neither Gary nor the Law Guardian presented evidence at trial. In his detailed oral decision issued at the conclusion of the trial, Judge David B. Katz found the Division proved, by clear and convincing evidence, all four prongs of N.J.S.A. 30:4C-15.1(a).
The judge first found all witnesses credible. Regarding Dr. Singer, the judge stated he "explained concepts of his chosen field in a comprehensible, intelligent, and understandable manner." As for Dr. D'Urso, Judge Katz noted, "he is highly skilled in his chosen field" with his experience being "well documented," his presentation "clear," and his explanation of concepts, "detail[ed]."
With respect to the first prong, the judge concluded the Division "established clearly and convincingly that the children's health, safety, and development were endangered by the parental relationship due to [domestic violence] in the home that negatively impacted the children." Judge Katz found a history of "significant domestic violence in the home perpetrated by [Gary]," dating back to 2009, and relied upon a December 2009 intake report in which a Division caseworker described Jill's eyes as "swollen" and presented her statements that she feared Gary and "really felt [he] was going to kill her because he choked her." The report also described Jill's pictures of injuries caused by Gary and her statements that she had previously not reported any domestic violence "because she was sacred."
The judge also relied upon Greg's "numerous statements" describing Gary's violence towards Jill, including his statement that Gary "pulled down [Jill's] pants" and "would say [to her], 'man, shut the F-word up.'" Greg also stated that he saw Jane try to stop Gary from hitting his mother and regretted not being able to help. Additionally, the judge credited Dr. D'Urso's "unchallenged opinion" that the children's diagnoses corroborated their statements that they were exposed to domestic violence in the home.
Judge Katz also found that Gary "ha[d] not provided . . . minima[l] parenting of his young children for nearly three years." The judge relied upon Gary's failure to "nurture, care, and support" Jane and Greg through the loss of their mother, and determined his actions of "withholding solicitude, nurture, and care" were cognizable harms under N.J.S.A. 30:4C-15.1(a)(1) and In re Guardianship of D.M.H., 161 N.J. 365, 380-81 (1999).
As to the second prong, the judge determined Gary was "unable or unwilling to limit the harm facing the [children]" relying on his refusal of any Division services, as well as his refusal to be evaluated despite the caseworker's repeated warnings about the impact of that decision. Judge Katz again relied upon the expert testimony of Dr. D'Urso and Dr. Singer, that "a delay of permanent placement of the children will add to the harm." The judge specifically believed Dr. D'Urso's testimony that both children particularly "need permanency" because of their long-term exposure to domestic violence, "and because they . . . lost both parents in one act."
The judge found "separating the children from Ms. J.'s home will cause further serious harm," and in doing so, relied on the testimony of both the Division's case manager and Dr. Singer. Specifically, the case manager stated the children were happy with Ms. J., and Dr. Singer's opinion the children "each have a healthy significant attachment to [Ms. J.], which is the foundation for a meaningful, stable, permanent long-term relationship." Judge Katz found "[s]evering that relationship . . . would cause a negative reaction" and "further trauma" for the children who "have already experienced a significant loss."
With respect to the third prong, Judge Katz determined the Division made reasonable efforts to provide corrective services to the family, both pre- and post- removal. He relied on the Division's referral of the children for "extensive services," such as individual and family and home therapy, psychological and psychiatric evaluations, comprehensive health evaluations, and grief counseling after the loss of their mother. Both Jane and Greg also received individualized services. Jane was referred to a nutritionist, and Greg received speech, occupational, and behavioral therapy as well as an Individualized Education
Program.
The judge also found the Division made reasonable efforts in providing services to Jill, by referring her to domestic violence counseling, family therapy, and parenting assistance. The Division also placed a parent aide and a health aide in the home. As to Gary, the judge found the Division properly referred him to batterer's intervention and anger management programs.
Judge Katz also found the Division properly deemed visitation with Gary's relatives inappropriate and acknowledged that visitation was "continually assessed." In support, he specifically relied upon an August 2018 letter from a Division psychologist. As Judge Katz described the psychologist's findings:
[T]he children stated that the paternal grandparents lied to them by telling them that . . . the mother ran off with another man when she had gone missing. These issues contribute to a lack of safety and security for the children and could possibly exacerbate the trauma they have experienced with the loss of their mother.
With respect to visitation with Gary, the judge noted that although the children initially desired to visit their father, they did not avail themselves of the opportunity to send him letters as permitted by the court. Judge Katz also noted that throughout the Division's involvement with the family, services were repeatedly offered to Gary, and he consistently rejected them.
Judge Katz also concluded the Division made reasonable efforts to place Jane and Greg with relatives and properly ruled out the paternal grandparents. The judge based his conclusion, in part, on a letter from the prosecutor's office to the Division. In that letter, the State argued against placement within the paternal grandparents' home because:
[The children] are potential witnesses in the anticipated trial on this case. Based on the wide-ranging conspiracy, to tamper with or otherwise hinder this investigation and prosecution by members of the children's paternal family, the undersigned has a serious concern that contact with the paternal grandparents will result in said grandparents tampering with the children as witnesses, or otherwise attempting to dissuade them from cooperating with this investigation and prosecution.
Finally, the judge found the Division properly ruled out Gary's sister because her home had insufficient space to care for the children and because the children "did not want to go there." As a result, Judge Katz determined the Division properly placed the children with Ms. J., who wished to adopt both children.
As to the fourth prong, the judge found the Division established both "children . . . have a positive attachment with [Ms. J.] that will be the foundation for . . . long-term meaningful relationships and provide permanency," and "[t]he good that will result . . . outweighs any harm" from terminating Gary's parental rights. Judge Katz acknowledged that although the Division typically "proceed[s] with comparative bonding evaluations," that was not possible here as Gary "refused to participate in a bonding evaluation, notwithstanding that he was facing the possible termination of his parental rights." The judge found notable that Greg quickly formed attachment to Ms. J., with whom he had lived "roughly five or six weeks," as well as Jane's "view [of] [Ms. J.] as a psychological parent and [her] extreme[] comfort[] in that home."
Judge Katz specifically credited Dr. Singer's conclusions that the children "have a heightened need for permanency," without which they could experience "anxiety," "sadness," and "difficulty form[ing] meaningful relationships later in life." The judge concluded that severing the children's attachment with Ms. J. would "caus[e] further harm and trauma to them," harm that "no available person [could] mitigate. "Finally, Judge Katz determined the children's need for permanency could only be fulfilled through their adoption by Ms. J.
The judge issued a conforming order terminating Gary's parental rights and this appeal followed.
II.
As noted, Gary only challenges Judge Katz's prong three and four findings. Regarding prong three, he specifically claims the Division did not properly "facilitate[e] appropriate visitation" because it did not accommodate the children's numerous statements and requests that they missed their father and wished to see him. He also contends that the "no-contact order" purportedly issued in his criminal proceeding which was relied upon to suspend his visitation in 2019 does not exist. Gary states that the Division's decision to deny him visitation was insufficient and contrary to law.
Because Gary does not contest the judge's findings under the first or second prong of the best interests test, we consider any challenge to Judge Katz's findings on those prongs waived. See Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2023) ("[A]n issue not briefed is deemed waived."); Telebright Corp. v. Dir., N.J. Div. of Taxation, 424 N.J.Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the party failed to include any arguments supporting the contention in its brief). Despite Gary's waiver, we have nevertheless reviewed the judge's prong one and two findings and are satisfied they are supported by substantial, credible evidence in the record and Judge Katz's legal conclusions unassailable.
He further asserts "[the Division's] concerns of harm [to the children] were embellished." In support, Gary refers to recommendations made by the children's therapists for supervised visits. Second, Gary argues that the children had previously been interviewed via video-recoding by the prosecutor's office following Division involvement. He maintains that the existence of these tapes rebuts any claim that visitation would result in witness tampering.
Gary also contends the Division "exercised extended efforts" to place the children with maternal relatives but did not afford the same advocacy for their paternal relatives, such as his parents or sister. Gary argues that the Division's opposition to his family is evidenced by its determination that his parents and sister were precluded from the licensing process "for lack of housing space." He claims that Ms. J., however, had similarly not obtained proper housing prior to the termination proceedings, yet the children remained in her home. Gary contends the Division's indulgence regarding Ms. J.'s home, should also have been extended to his family members.
As to the court's prong four findings, Gary argues they too are deficient because the bonding evaluations by Dr. Singer were conducted a year prior to the proceedings and failed to account for "subsequent changes in the children's circumstances." He claims the evaluations did not address issues of "overcrowd[ing]" in Ms. J.'s home, as well as testimony by Greg that illustrated his desire to see his paternal aunt and "his ambivalence towards remaining with [Ms. J.]."
Finally, Gary contends the court's exclusion of him and his counsel from the October 2020 proceeding that addressed visitation issues and the children's placement preferences deprived him of his constitutional rights and "improperly prejudiced his defense." He asserts his absence left him "unaware" of Greg's "disposition" towards his paternal aunt, and would have informed specific strategies at trial, such as a motion to memorialize Greg's testimony. Specifically, Gary draws the comparison to Title 9 abuse and neglect proceedings under N.J.S.A. 2A:84A-32.4(d), that require defense counsel's presence during in-camera child testimony, as support for the proposition that his due process rights were violated in his attorney's absence. Gary claims that the "rights and finality at stake . . . in proceedings pursuant to Title [30]" further support his assertion.
We disagree with all of these arguments and affirm substantially for the reasons set forth by Judge Katz in his well-reasoned and thoughtful oral opinion. We add the following to address Gary's specific claims in relation to the court's prong three and four findings, as well as his arguments related to the October 2020 hearing.
III.
In reviewing a court's decision to terminate an individual's parental rights, "[t]he scope of our review of [the] . . . court's factual findings is limited." N.J. Div. of Youth & Fam. Servs. v. L.J.D., 428 N.J.Super. 451, 476 (App. Div. 2012). "A Family Part's decision to terminate parental rights will not be disturbed when there is substantial credible evidence in the record to support the court's findings," N.J. Div. of Child Prot. &Permanency v. K.T.D., 439 N.J.Super. 363, 368 (App. Div. 2015), because the court "has 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." N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 293 (2007)).
"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." Ibid. (quoting N.J. Div. of Youth &Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007)). We must also recognize the expertise of the Family Part. See, e.g., N.J. Div. of Youth &Fam. Servs. v. F.M., 211 N.J. 420, 448 (2012). We review the trial court's legal conclusions de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A parent's right to maintain a relationship with his or her child is constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing Stanley v. Illinois, 405 U.S. 645 (1972)). Courts honor and recognize this right, imposing strict standards for terminating the parent-child relationship. Id. at 347. Our public policy, however, is that "[a] child cannot be held prisoner of the rights of others, even those of [the] parents. Children have their own rights, including the right to a permanent, safe and stable placement." N.J. Div. of Youth &Fam. Servs. v. C.S., 367 N.J.Super. 76, 111 (App. Div. 2004). "Keeping the child in limbo, hoping for some long[-]term unification plan, would be a misapplication of the law." L.J.D., 428 N.J.Super. at 484 (quoting N.J. Div. of Youth &Fam. Servs. v. A.G., 344 N.J.Super. 418, 438 (App. Div. 2001)).
A court may terminate parental rights only if the Division proves all four prongs of the "best interests" test. K.H.O., 161 N.J. at 347-48, 363. Specifically, before termination can occur, the Division must show by clear and convincing evidence that:
(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;
(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).]
"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., 161 N.J. at 348. Moreover, "parental fitness is the key to determining the best interests of the child. The considerations involved in determinations of parental fitness are extremely fact sensitive and require particularized evidence that address the specific circumstances in the given case." Ibid. (citations omitted) (internal quotation marks omitted).
Against these legal principles and standards of review we address Gary's challenges to the judge's prong three and four findings.
A. Prong Three
N.J.S.A. 30:4C-15.1(c) defines reasonable efforts as those reasonable "attempts by an agency authorized by the [D]ivision to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure." The statute lists examples of "reasonable attempts" at reunification, including but not limited to:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development, and health; and
(4) facilitating appropriate visitation.
[N.J.S.A. 30:4C-15.1(c).]
The focus is on the Division's efforts toward "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 [resource parent] care." K.H.O., 161 N.J. at 354. However, "[t]he diligence of [the Division]'s efforts . . . is not measured by their success," but rather "against the standard of adequacy in light of all the circumstances . . . ." D.M.H., 161 N.J. at 393.
Further, 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 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 &Fam. Servs. v. K.L.W., 419 N.J.Super. 568, 583 (App. Div. 2011).
"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 &Fam. Servs. v. K.F., 353 N.J.Super. 623, 636 (App. Div. 2002). However, there is no presumption in favor of a relative. N.J. Div. of Youth &Fam. Servs. v. J.S., 433 N.J.Super. 69, 82 (App. Div. 2013)."[U]ltimately the question is what was in [the child's] best interest[s] based upon the circumstances as they existed at the time of the final hearing . . . ." N.J. Div. of Youth &Fam. Servs. v. M.F., 357 N.J.Super. 515, 527 (App. Div. 2003).
We acknowledge that the Legislature enacted P.L. 2021, c. 154 amending laws pertaining to standards for termination parental rights and the placement of children with relatives or kinship guardians. We are satisfied that such amendments do not affect our analysis.
Here, Judge Katz's finding that the Division used reasonable efforts to provide services to Gary is amply supported by substantial credible evidence in the record. Throughout its involvement, the Division properly directed Gary to programs to address his anger management, as well as his physical abuse towards Jill. Though Gary participated in the suggested batterer's program prior to his incarceration, he refused to engage in any services or evaluations offered by the Division following his detention.
Further, Judge Katz accurately found visitation was "continually assessed" by the Division. The record reflects that when Jane's therapist supported a supervised visit with Gary in May 2019, the court permitted visitation. The record also reflects that approximately a month later, however, the court determined that visitation was no longer appropriate based on, among other concerns, "the emotional harm to the children caused by [Gary's] physical and psychological violence against their mother." Even so, following this determination alternative avenues for communication were promoted in the form of letter writing. This option was created based on the children's stated desire to see Gary. Despite this opportunity, neither child elected to communicate with Gary.
We agree with Gary that the Law Guardian's and Division's reference to a "nocontact" order is inaccurate as the record contains no order with such a prohibition. The suspension of Gary's visitation, however, by a previous judge was based on a specific finding of "the emotional harm to the children caused by [Gary's] physical and psychological violence against their mother."
We also disagree with Gary's claim that the existence of the children's recorded interviews somehow refutes the judge's concerns regarding potential witness tampering. Judge Katz properly credited both the prosecutor's office and the Division therapist's apprehensions regarding contact with the paternal relatives. The fact that the children may have given recorded statements does not eliminate the State's valid concerns of potential intimidation or possible influence over the children as witnesses against Gary. In addition, the judge properly found that contact with the paternal grandparents could "exacerbate" the already traumatic event of losing their mother, in part, based on their lie to the children regarding Jill's absence.
Finally, we are satisfied with the judge's determination that the Division properly exercised reasonable efforts to place the children with family members. The Division presented testimony and documentary evidence, which the judge duly credited, that it appropriately assessed both maternal and paternal relatives as possible placements for Jane and Greg and provided sufficient reasons for any subsequent rule outs.
B. Prong Four
The ultimate question under prong four is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [their] natural parents than from the permanent disruption of [the] relationship with [their resource] parents." K.H.O., 161 N.J. at 355. "[T]he child's need for permanency and stability emerges as a central factor." Id. at 357.
Prong four is typically satisfied by expert testimony based on a comparison of bonding evaluations. See N.J. Div. of Child Prot. &Permanency v. N.C. M., 438 N.J.Super. 356, 371 (App. Div. 2014) (stressing the need for "well[-]qualified expert" testimony concerning bonding evaluations (quoting In re Guardianship of J.C., 129 N.J. 1, 19 (1992))); L.J.D., 428 N.J.Super. at 492. Indeed, to weigh any potential harm from terminating parental rights against a child's separation from their foster parents, a court must consider expert testimony on the strength of each relationship. J.C., 129 N.J. at 25.
We are unpersuaded by Gary's challenges to Dr. Singer's evaluations of the children and are satisfied Judge Katz's findings on prong four are fully supported by the record. As noted, Dr. Singer testified that Jane viewed Ms. J. as a psychological parent and highlighted the relevance of Greg's immediate attachment to her. Further, Dr. Singer stressed both child's need for permanency, and the negative impact that could occur if their relationship with Ms. J. was severed. We also note, as the judge did, that Gary refused to undergo a bonding evaluation with the children, despite the Division's repeated warnings of its impact on his guardianship case.
We acknowledge that Gary likely did not testify or submit to psychological or bonding evaluations due to his impending criminal trial, however, we are satisfied this fact does not affect our analysis. As noted, "[a] child cannot be held prisoner of the rights of others, even those of [the] parents. Children have their own rights, including the right to a permanent, safe and stable placement." C.S., 367 N.J.Super. at 111.
IV.
Finally, we are satisfied that nothing about the October 2020 benchmark hearing violated Gary's due process rights or otherwise warrants reversal of the court's order terminating his parental rights. As a preliminary matter, we note Gary did not object to the manner in which the judge conducted the October 2020 proceeding. We typically decline to address "questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J.Super. 542, 548 (App. Div. 1959)). Neither exception applies here. Although we could decline to consider Gary's due process arguments on that basis alone, for purposes of completeness we consider and reject them on the merits.
Pursuant to Rule 5:12-4(b), the trial court may in its discretion take the testimony of a child "privately in chambers or under such protective orders as the court may provide." Further, "the authority of the judge to conduct a private examination of a child in order to discover its wishes as to custody is well established." Callen v. Gill, 7 N.J. 312, 319 (1951). "[T]he object of a private examination is to ascertain the predilection of the child, and the predilection, when ascertained, should be openly stated," as it is a factor to be considered at trial and on appeal. Ibid. Accordingly, Rule 5:12-4(b) requires the court to make "[a] verbatim record . . . of any in-chambers testimony of a child."
Gary's claim that his absence at the October 2020 proceeding affected his defense is unfounded. The court determined it would hold a hearing between the children, their Law Guardians, and the judge to ascertain where the children desired to live. Prior to the proceeding, Gary's counsel was not only aware the parameters of the hearing, but he was able to submit particular questions to the judge to be directed to the children. Further, a transcript, or "verbatim" record, was taken of the hearing. Finally, following the proceeding a summary was also provided to the parties in an order, which specifically detailed the court's finding:
[Jane] expressed that she would like to remain living with [Ms. J.]. [Greg] expressed an uncertainty as to whether he would like to live with his [paternal] [a]unt or [Ms. J.] but does not want to live with his [paternal] grandparents and wants more time to think about it . . . Both children expressed that although they missed their father they inquired to ensure that he was still incarcerated.
To the extent we have not specifically addressed any of Gary's arguments, it is because we find them without sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).
Affirmed.