N.J. Div. of Child Prot. & Permanency v. H.H.
| Decision Date | 13 July 2020 |
| Docket Number | DOCKET NO. A-4739-15T2,DOCKET NO. A-4736-15T2 |
| Parties | NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. H.H. and C.R., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF K.H., J.H., and D.H., Minors. |
| Court | New Jersey Superior Court — Appellate Division |
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-0094-15.
Joseph E. Krakora, Public Defender, attorney for appellant H.H. (Robyn A. Veasey, Deputy Public Defender, of counsel; Laura Orriols, Designated Counsel on the briefs).
Joseph E. Krakora, Public Defender, attorney for appellant C.R. (Robyn A. Veasey, Deputy Public Defender, of counsel; Christine Olexa Saginor, Designated Counsel, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa Dutton Schaffer and Donna Sue Arons, Assistant Attorney Generals, of counsel; Joshua Paul Bohn, Deputy Attorney General, on the briefs).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.H. and J.H. (Meredith Alexis Pollack, Assistant Deputy Public Defender, of counsel; James Joseph Gross, Designated Counsel, on the briefs).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.H. (Meredith Alexis Pollack, Assistant Deputy Public Defender, of counsel; Todd S. Wilson, Designated Counsel, on the briefs).
Following trial, the Family Part entered its May 5, 2016 judgment of guardianship terminating the parental rights of defendants, H.H. (Harry) and C.R. (Carmela), to their three children, D.H. (Debbie), born January 2003, J.H.(Jack), born August 2005, and K.H. (Kathy), born July 2007.1 Defendants moved for reconsideration, which the judge denied.
Defendants appealed, arguing the Division of Child Protection and Permanency (the Division) failed to produce clear and convincing evidence satisfying all four prongs of the statutory best-interests-of-the-child test, N.J.S.A. 30:4C-15.1(a)(1)-(4). In addition, Harry contended the judge mistakenly admitted, over his objection, certain Division evaluation reports, because she concluded the Division's expert psychologist, Dr. Barry Katz, relied upon them in rendering his opinions at trial. Harry asserted the judge's mistaken conclusion about the bases for the expert's opinions rendered Dr. Katz's opinions unworthy of belief. The children's Law Guardian specifically joined in challenging the sufficiency of the prong three and four evidence and urged us to reverse the judgment.
While the appeal was pending, the resource parent, who at the time of trial had indicated a willingness to adopt all three children, changed her mind as to Debbie and Jack, both of whom had displayed serious behavioral problems in the interim. Defendants moved before us to summarily reverse the judgment ofguardianship, or, in the alternative, for a limited remand to the Family Part to consider a motion to vacate the judgment pursuant to Rule 4:50-1 based upon this change in circumstances. We granted the alternate relief and stayed appellate proceedings pending defendants filing motions in the Family Part to vacate the judgment, which they did.
A different judge heard oral argument on the motions. In a comprehensive oral opinion outlining the parties' arguments and the developments since entry of the judgment, the judge noted that Debbie and Jack now had "no reasonable prospects of being adopted into the same home." She decided to reopen the guardianship docket based on "newly discovered evidence[,]" and, in granting what she characterized as "relatively narrow" relief, the judge allowed Dr. Katz "the opportunity to review the newly discovered information and determine if this change in circumstances would affect his opinion as it was presented to the [t]rial [c]ourt." The judge denied defendants' other requests for new bonding evaluations and to vacate the judgment and grant them visitation.
Dr. Katz's initial supplemental report indicated a need to conduct further evaluations, and the judge subsequently entered orders permitting them. She continued to deny, however, defendants' requests for new bonding evaluations.The judge granted the Law Guardian's motion to hold a plenary hearing, which was conducted over four non-consecutive days between April and July 2018.2
On September 21, 2018, the judge entered an order granting defendants' motion to vacate the judgment of guardianship as to Debbie and Jack, but she denied the motion as to Kathy. Defendants filed amended notices of appeal seeking review of this order. The Division did not file a cross-appeal. As a result, we only consider the arguments raised by defendants as to the termination of their parental rights to Kathy.
In addition to the points on appeal he originally raised, Henry now contends the remand judge erred by limiting the development of a full record regarding potential reunification with Kathy, while at the same time concluding that reunification with Debbie and Jack was possible. He also argues that this limitation on the scope of the remand hearing, along with the Division's bad faith during trial, denied him due process. Carmela reasserts her arguments regarding the insufficiency of the evidence supporting termination. She also contends that the remand judge misapplied the Court's holding in In re Guardianship of J.N.H., 172 N.J. 440 (2002), regarding a Rule 4:50-1 motion tovacate, and the judge erroneously focused her attention on whether the initial judgment was correct, rather than whether it remained fair and equitable under the changed circumstances.
The Division asserts that the trial evidence satisfied its burden of proof as to all four prongs of the statutory test, and that the additional evidence on remand continued to support the judgment of guardianship. Kathy's Law Guardian's supplemental brief urges us to affirm the judgment.
We have considered these arguments and affirm.
Caseworkers assigned to the family testified at trial about the long history of the Division's involvement with defendants, who were never married, and, at the time of trial, were married to other people. The caseworkers detailed much of the documentary evidence, which included past substantiated and unsubstantiated referrals for domestic violence and substance and alcohol abuse. Defendants' compliance with services was sporadic at best. The children had been twice removed from defendants and returned in attempted reunification prior to the 2014 removal that led to the guardianship trial.
In January 2013, Harry was convicted of an unrelated incident of aggravated assault and sentenced to a three-year term of imprisonment; theDivision supplied him with services during his incarceration and arranged for his monthly visitation with the children. Harry attended mental health and drug treatment after his release from prison in 2015, but his participation became sporadic. His case was closed in September 2015 after Harry threatened to blow up a Division office.
In early April 2014, the Division effected an emergency removal of the children after Carmela struck a pole in the middle of the night while driving under the influence; she had left the children home alone. Carmela's attendance at substance abuse counseling thereafter was inconsistent.
Initially, all three children were placed in the same resource home. Shortly thereafter, however, the Division placed Jack with a different family because the original resource home did not have a separate room for him and was licensed for only two children of school age. The Division's plan was to have the two girls adopted by the resource family, and for Jack to be adopted by them as well if the required changes could be made to the home. If not, the Division intended to seek a select home adoption for Jack, who had begun displaying significant behavioral problems.
Dr. Katz testified at trial and rendered opinions reached after he conducted evaluations of both defendants and bonding evaluations between each defendantand the children. Based on his testing, Dr. Katz concluded that Harry met diagnostic criteria consistent with bipolar disorder, "with numerous other dysfunctional character logical (sic) traits." Dr. Katz noted Harry's "extensive criminal history[,]" which included violent assaults against men and women, and that he had been incarcerated twice for assault. Harry admitted to Dr. Katz that he had threatened Carmela and her mother, E.R., and had violated domestic violence restraining orders entered against him. Dr. Katz testified that while the children recognized Harry as their father, "that perception was based more upon fantasy than reality." So, too, was Harry's stated plan to become a "bounty hunter[,]" given the numerous arrests in his past.
Based on his testing, Dr. Katz found that Carmela had a "pervasive compulsive personality disorder with histrionic features[.]" She minimized her problems by denying any alcohol abuse and offered inconsistent versions of why the children were removed. Carmela told Dr. Katz that Harry was physically and emotionally abusive towards her in front of the children, and the doctor described their relationship as co-dependent and violent. With respect to Carmela's bonding evaluation, Dr. Katz testified that the children, particularly Debbie, exhibited a "conflict[ed]" attitude towards her mother, and Carmela displayed frustration at times in dealing with the children. Dr. Katz concludedthat defendants were unable to parent the children, and that the children would be at risk of abuse and neglect if returned to defendants' care.
Dr. Katz also conducted a...
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