DCPP VS. L.M.D. AND C.F.S., IN THE MATTER OF GUARDIANSHIP OF K.B.S. AND C.S. (FG-07-0031-20, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (CONSOLIDATED)
A-2819-19/A-2820-19
| N.J. Super. Ct. App. Div. | Jul 7, 2021Background
- Kira (born 2016) suffered subdural/subarachnoid and retinal hemorrhages and a healing humerus fracture in June 2017 while in defendants' care; Carl later admitted he shook Kira; Kira was removed, then reunified after services.
- After reunification, Cara (born 2018) presented in August 2018 with a left femur fracture and subacute subdural hemorrhages; defendants gave multiple, inconsistent accounts of how Cara was injured.
- Pediatric child-abuse expert Dr. Weiner concluded both children’s injuries were not explained by defendants’ accounts and were consistent with non-accidental trauma; psychologist Dr. Alonso found defendants engaged in impression management, were not forthcoming, and posed ongoing risk.
- Both children were placed with resource parents who sought to adopt; bonding evaluations found Kira securely attached to her resource parent and Cara trending toward secure attachment with resource parents.
- At trial the Division admitted 82 exhibits (including an investigator’s summary of recorded police statements) with defense counsel’s consent; the Family Part found all four statutory prongs for termination satisfied and terminated parental rights. Defendants appealed, arguing (inter alia) inadmissible hearsay and insufficient proof.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of investigator's summary (alleged embedded hearsay) | Division: exhibits, including the summary, were properly admitted and experts may rely on such materials; defense counsel consented. | Laura: summary is inadmissible hearsay; experts relied on it, tainting testimony. | Court: defense consented to admission; doctrine of invited error bars challenge; experts’ reliance permissible under N.J.R.E. 703; no plain or prejudicial error. |
| Prongs 1–2 (child harmed; parents unwilling/unable to remediate) | Division: medical and expert testimony show injuries were inflicted and defendants’ inconsistent narratives, guardedness, and use of services for impression management show ongoing risk and inability/unwillingness to remediate. | Defendants: they completed services and received positive provider reports; evidence insufficient to meet clear-and-convincing standard. | Court: substantial credible evidence (medical experts, psychologist, conflicting accounts, pattern of injuries) met clear-and-convincing standard; parents pose continuing risk and cannot remediate in foreseeable future. |
| Prong 3 (reasonable efforts / alternatives; relatives assessment) | Division: provided extensive services and assessed relatives; delays were caused by relatives (e.g., Christine); permanency needs justify decision before all assessments complete. | Defendants: Division failed to exhaust/fully explore alternatives and should have waited for relative assessment (Christine). | Court: Division made reasonable efforts; statutory timelines and childrens’ need for permanency justified proceeding before completion of remaining relative assessment. |
| Prong 4 (termination will not do more harm than good) | Division: bonding evaluations show stronger attachments to resource parents; permanency via adoption will do more good than harm. | Defendants: severing the parent-child relationship will harm the children. | Court: expert bonding testimony and permanency concerns support that termination will not do more harm; children would suffer greater harm by delaying adoption. |
Key Cases Cited
- N.J. Div. of Youth & Fam. Servs. v. A.L., 213 N.J. 1 (2013) (parental right to raise child is fundamental but not absolute)
- In re Guardianship of K.H.O., 161 N.J. 337 (1999) (framework for best-interests/burden and standards in TPR cases)
- N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328 (2010) (doctrine of invited error bars appellate challenges to evidence admitted with defense consent)
- N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261 (2007) (trial court’s factfinding and credibility determinations warrant deference)
- N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420 (2012) (role of bonding evaluations and comparative harm under prong four)
- In re Guardianship of J.C., 129 N.J. 1 (1992) (child’s overriding interest in stability and permanency)
- N.J. Div. of Child Prot. & Permanency v. R.L.M., 236 N.J. 123 (2018) (need for prompt permanency determinations)
- N.J. Div. of Youth & Fam. Servs. v. B.G.S., 291 N.J. Super. 582 (App. Div. 1996) (lack of permanency can constitute harm under the statutory prongs)