                                       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                                 NOT FOR PUBLICATION WITHOUT THE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 NO. A-3437-17T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

T.W., J.K., JR., and D.H.,

     Defendants-Respondents.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF J.W.,
T.G., and D.H.,

     Minors-Appellants.
_____________________________

                   Argued August 5, 2019 – Decided August 16, 2019

                   Before Judges Sabatino, Rose and Mitterhoff.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Passaic County,
                   Docket No. FG-16-0033-17.
            Olivia Belfatto Crisp, Assistant Deputy Public
            Defender, argued the cause for appellants (Joseph E.
            Krakora, Public Defender, Law Guardian, attorney;
            Olivia Belfatto Crisp, on the briefs).

            Ted G. Mitchell, Deputy Public Defender, argued the
            cause for respondent T.W. (Joseph E. Krakora, Public
            Defender, attorney; Ted G. Mitchell, on the brief).

            Mary Kathleen Potter, Designated Counsel, argued the
            cause for respondent J.K., Jr. (Joseph E. Krakora,
            Public Defender, attorney; Mary Kathleen Potter, on
            the brief).

            John Andrew Albright, Designated Counsel, argued the
            cause for respondent D.H. (Joseph E. Krakora, Public
            Defender, attorney; Robyn A. Veasey, Deputy Public
            Defender, of counsel; John Andrew Albright, on the
            brief).

            Christian Arthur Arnold, Assistant Attorney General,
            argued the cause for respondent Division of Child
            Protection and Permanency (Gurbir S. Grewal,
            Attorney General, attorney; Jason Wade Rockwell,
            Assistant Attorney General, of counsel; Christian
            Arthur Arnold, on the brief).

PER CURIAM

      In this Title 30 action, the Law Guardian for three minor children appeals

the Family Part's March 14, 2018 order denying termination of the parental

rights of the children's mother and their respective fathers. The order followed

a two-day trial at which the Division of Child Protection and Permanency ("the

Division") presented testimony from two witnesses, both of whom the trial judge

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                                       2
found in various respects to lack credibility. Defendant parents and the Law

Guardian proffered no witnesses. Based on the proofs the Division chose to

present at trial, the judge concluded the four prongs of N.J.S.A. 30:14C-15.1(a),

which are required for termination, had not been proven by the necessary level

of clear and convincing evidence.

      On appeal, the Law Guardian argues the trial court misconstrued the

record and misapplied the law in several respects. She urges that we reverse the

final judgment and permanently sever these parents from their children.

Although it did not file a notice of appeal, the Division joins in the Law

Guardian's position.

      Applying the heightened deference owed to the trial court in cases of

termination denials, we affirm that court's decision.

                                        I.

      We need not set forth here comprehensively the facts and procedural

history, as we presume the parties' familiarity with those details. The following

brief summary will suffice.




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                                        3
      The Parties and The Subject Children

      The defendant mother, T.W., was born in June 1992. 1 Each of her four

children has a different father. The oldest child, A.G., was born in September

2008. A.G. and her father ceased to be involved in this case before the trial, and

they are not the subject of the final judgment or this appeal. Hence, the case

concerns only the three other children.

      The next oldest child, T.G., was born in December 2009. While the

parental rights of T.W. as the mother of T.G. are part of this case and this appeal,

those of T.G.'s father, K.M., are not.        That is because K.M. voluntarily

surrendered his rights before trial to J.M., who is K.M.'s mother and T.G.'s

paternal grandmother. J.M. had already been serving as T.G.'s caregiver and

intended to adopt him.

      T.W.'s third child, J.W., was born in October 2013. J.W.'s father is J.K.,

a co-defendant at trial and a co-respondent on appeal.




1
  We use initials to protect the privacy of the children and the confidentiality of
the Division's records. R. 1:38-3(d)(12). For clarity, we at times refer to T.W.
as "the mother."


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                                          4
      The youngest child, D.W., 2 was born in February 2016. His father, D.H.,

was likewise a co-defendant at trial and is a co-respondent in this appeal.

      The Division's Initial Involvement with the Family

      The Division first became involved with the children in February 2013,

when it removed A.G. and T.G. from the care of T.W., who was then living in

the home of her own mother. The residence at the time lacked heat and hot

water, although the children appeared healthy and appropriately dressed for the

season. T.W. tested positive for marijuana, and admitted to using marijuana

twice a day, three to four times per week. She was ordered to and received

intensive outpatient treatment.

      In the meantime, A.G. and T.G. were removed and placed in resource

homes, where the mother had frequent visitation with them.          The mother

continued to receive treatment, although at times she generated positive urine

screens for marijuana. The mother also submitted to several mental health

evaluations. Among other things, the evaluations revealed that she suffered

from depression and other mental health and cognitive issues.           She was

recommended for antidepressant medication.


2
  At times the record also refers to this youngest child using the surname "H."
To avoid confusion, we will refer to him as "D.W." rather than "D.H.," to
distinguish him from his father.
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                                        5
      J.W.'s Birth in October 2013

      In October 2013, the mother gave birth to J.W., her third child. The

Division was given care and supervision of J.W., but T.W. retained legal and

physical custody. J.W.'s father, J.K., was incarcerated at the time but expected

to be released soon. The mother continued to have supervised visitation with

her two older children, which went favorably. She attended a full -time school

program on her own accord and obtained a GED degree.

      Reunification of the Children with T.W. in May 2014

      In May 2014, A.G. and T.G. were reunited with T.W., who was then living

with her own mother. The family pursued emergency housing assistance, and

T.W.'s progress with services was considered satisfactory at that time.

      The January 2015 Emergency Removal and other Developments

      In January 2015, T.W. tested positive for marijuana. T.W. was then

referred for services, but failed to appear. A month later, in February 2015, the

Division conducted an emergency removal of all three children, citing T.W.'s

noncompliance with court-ordered services, and her marijuana relapse.

      In March 2015, T.W. attended an intensive program focused on relapse

prevention and anger management, although she discontinued that program a




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                                       6
month later due to funding problems. Meanwhile, T.W. continued to visit with

the children.

      In August 2015, the Division moved T.G., the second child, from his

resource home to the residence of his paternal grandmother. By mid-September

2015, the mother was living with D.H., and was attending school and working.

      D.W.'s Birth in February 2016 and Additional Events

      After D.W. was born in February 2016, the Division removed him from

the hospital on an emergency basis. Several days later, the trial court found no

grounds for the removal and returned D.W. to the care of T.W. and D.H., who

were then living with T.W.'s mother. A caseworker visited the house and found

no safety issues and that T.W. and D.H. appeared to be bonded to their child and

had a good relationship with one another.

      An expert psychologist retained by the Division conducted a bonding

evaluation between the mother and J.W. and T.G. in June 2016. The expert

opined that T.W. was affectionate and supportive when interacting with T.G.

and J.W., who both identified her as their mother. The expert concluded that

T.G. and J.W. were attached to their mother, and would suffer harm if

permanently removed from T.W.          He consequently did not recommend

termination at that time.


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                                       7
      T.W. received ongoing treatment and counseling, but also continued to

test positive at times for marijuana use. She maintained a fairly steady record

of visitations with T.G. and J.W.

      In December 2016, the Division removed D.W. from T.W. and D.H.,

mainly due to T.W.'s continued marijuana usage and D.H.'s failure to comply

with substance abuse testing. D.W. was placed with the resource parent who

was already caring for J.W.

      Thereafter, T.W. continued to visit the three youngest children, and she

also continued her attempts with various services.

                                       II.

      The Division's Guardianship Complaint and Further Developments

      The Division filed a complaint for guardianship of T.G. and J.W. seeking

to terminate the rights of their parents in January 2017. The Division amended

its complaint in August 2017 to include D.W. and to add his father D.H. as a co -

defendant.

      In the fall of 2017, an evaluation revealed that T.W. and D.H. had been

staying with T.W.'s godmother temporarily in Pittsburgh. More evaluations

ensued.      Among other things, a psychiatrist retained by the Division

recommended that T.W. be prescribed a mood stabilizer to prevent


                                                                         A-3437-17T3
                                       8
antidepressants from worsening her symptoms, but apparently the mood

stabilizer was not provided to her.

      The Two-Day Trial

      The guardianship trial was conducted over two separate days in February

2018. The Division presented only two witnesses: (1) a caseworker who had

been intermittently assigned to this family from October 2015 through June

2016, and again from August 2017 through February 2018; and (2) a

psychologist who first evaluated the parents and the children in the fall of 2017.

The Division also presented various records, including the admission, over J.K.'s

objection, of reports of another expert retained by the Division. As we have

already noted, the Law Guardian and the defendant parents did not present any

witnesses.

      The Trial Judge's Opinion

      After sifting through the proofs, the trial judge issued a detailed thirty-

page written opinion on March 14, 2018. The judge found that the Division

failed to prove by clear and convincing evidence the necessary prongs of the

statutory test for terminating parental rights.

      Regarding T.W., the judge found that the Division proved prong one as to

T.G., but not as to J.W. and D.W., and failed to prove prongs two, three, and


                                                                          A-3437-17T3
                                         9
four with respect to T.G., J.W., and D.W. Regarding J.K., the judge found the

Division did not prove prong three, although it did prove as to him prongs one,

two, and four. Lastly, regarding D.H., the court determined that the Division

did not prove any of the four prongs.

      In her written opinion, the trial judge determined that the testimony of

both of the Division witnesses was not credible in several critical respects.

Among other things, the judge identified several deficiencies in the testifying

psychologist's methodology, observing that he dissembled on the witness stand

and that he had failed to review certain visitation records and other relevant

materials.   The judge also found the caseworker's testimony unconvincing,

noting, among other things, that she had trouble recalling certain important

details.

      The trial judge also expressed serious concerns about lengthy gaps in the

Division's records for various time periods. Those periods included: June 2014

to January 2015; December 2015 to February 2016; and December 2016 to

March 2017.

      In the course of her analysis, the judge particularly criticized the

mismanagement of the mother's mental health treatment. As the judge found:

             Most troublingly, however, is that in May 2017, [the
             Division's expert psychiatrist] diagnosed [T.W.] with

                                                                       A-3437-17T3
                                        10
             bipolar disorder and indicated that [T.W.] should be
             placed on both a mood-stabilizer and an anti-depressant
             and that an anti-depressant alone would worsen her
             symptoms of bipolar disorder.              [The expert]
             recommended       substance-abuse       treatment      and
             counseling     services.        Despite      this    clear
             recommendation, the Division made no effort to
             schedule her for psychiatric services and no effort to
             provide her with counseling. In fact, after referring
             [T.W.] for substance-abuse services in August [2017],
             the Division made no substantive contact with her until
             October 2017. Essentially the Division made no effort
             to assist [T.W.] with her mental illness, and in fact, had
             provided services – anti-depressants – earlier in the
             case that may have had an adverse impact on her mental
             health.

      The Law Guardian's Appeal

      After the trial court issued its final judgment denying termination, the Law

Guardian filed the present appeal. Notably, the Division did not file an appeal

but as a respondent did endorse the Law Guardian's request for reversal. We

were advised at oral argument that, in the interim, the Division has filed another

guardianship complaint in the Family Part, and that a trial in that new case is

presently expected to begin in October 2019.

      The Law Guardian maintains that the evidential record was sufficient to

establish the four criteria for termination as to the mother and all three respective

fathers. The Law Guardian contends that the trial court had a skewed impression

of the witnesses and overlooked key contents of the documentary exhibits that

                                                                             A-3437-17T3
                                        11
were unfavorable to the parents. The Law Guardian also argues the children are

being unnecessarily delayed by the judge's decision in achieving a permanent

outcome.     The Division generally concurs in those arguments, although it

maintains it is nonetheless prepared to prove its contentions at the upcoming

trial.

                                        III.

         As the Law Guardian and the Division acknowledge, our case law

prescribes an especially deferential scope of review in appeals taken from the

Family Part's denial of the termination of parental rights. Our Supreme Court

has repeatedly instructed, "[a]ppellate review of a trial court's decision to

terminate parental rights is limited, and the trial court's factual findings 'should

not be disturbed unless they are so wholly unsupportable as to result in a denial

of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citations

omitted). We "must defer to a trial judge's findings of fact if supported by

adequate, substantial, and credible evidence in the record." N.J. Div. of Youth

& Family Servs. v. G.L., 191 N.J. 596, 605 (2007). We do so because the Family

Part has "the superior ability to gauge the credibility of the witnesses who testify

before it and because it possesses special expertise in matters related to the

family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012).


                                                                            A-3437-17T3
                                        12
      Most importantly for the present appeal, even "greater deference is owed

to a denial of an application to terminate parental rights than to a grant of an

application because a termination of parental rights is final and canno t be re-

visited by the court." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527,

553 (2014).

      Applying these well-settled principles of "greater deference," we affirm

the Family Part's decision, substantially for the reasons detailed in the trial

judge's lengthy opinion. The judge reasonably concluded the Division had not

met its heavy burden to prove the necessary prongs for termination by clear and

convincing evidence.

      With respect to the Division's testifying expert in particular, the judge

cited several cogent reasons why that particular expert was unpersuasive. We

shall not second-guess that assessment. It is well-settled that a fact-finder is

"free to accept or reject in whole or in part the testimony of" any expert.

Southbridge Park, Inc. v. Borough of Fort Lee, 201 N.J. Super. 91, 94 (App.

Div. 1985). See also City of Long Branch v. Liu, 203 N.J. 464, 491-92 (2010).

The fact-finder may do so "even if that testimony is unrebutted by any other

[expert] evidence." State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004).




                                                                        A-3437-17T3
                                      13
      The judge made it very clear why she did not find the Division's testifying

expert credible on key points. Similarly, we will not set aside the judge's adverse

credibility findings concerning the testifying caseworker, which likewise were

well explained.

      The Law Guardian argues that, regardless of the trial court's negative

impressions of the testifying witnesses, the hearsay statements contained in the

documentary exhibits were sufficient to prove the Division's case. We reject

that argument. A judge presumably appreciates the nature of hearsay and will

give it the weight, if any, it deserves. See N.J. Div. of Child Prot. & Permanency

v. J.D., 447 N.J. Super. 337, 348-49 (App. Div. 2016) (observing that, "[w]hen

objectionable hearsay is admitted . . . without objection, we presume that the

fact-finder appreciates the potential weakness of such proofs, and takes that into

account in weighing the evidence."). The hearsay statements in the documents

do not compel reversal of the judge's overall fact-finding.

      Having examined the trial transcripts and the documentary exhibits, we

are unpersuaded the trial judge's decision lacks evidential support or that it is

legally erroneous. The judge duly recognized the mother's problematic ongoing

usage of marijuana and her imperfect compliance with services. But, on the flip

side, the judge also recognized the mother's substantial efforts in visiting


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                                       14
frequently with the children, maintaining her relationship with them, and in

advancing her own skills and education, including attaining a GED degree.

Given those offsetting considerations, the judge reasonably rejected the

Division's request to terminate her rights.

      We also share the trial judge's concerns about the large time gaps in the

Division's records, and also the Division's apparent failure to adequately manage

the mother's mental health treatment.

      Lastly, the trial judge articulated reasonable justifications for not

terminating the parental rights of the fathers, given the short comings of the

present record.

      We therefore affirm the trial court's decision. We do so, of course, without

prejudice to whatever evidence that may emerge at the forthcoming new trial,

including events and developments that post-date the February 2018 trial. 3

      Affirmed.




3
  In light of our affirmance, we need not address the policy arguments presented
by defendants concerning the Division's approach with respect to parents such
as T.W. with cognitive limitations, and other issues. We do so without
precluding defendants from raising those policy concerns at the new trial, in this
case, or in some other case, with appropriate expert or other evidential support.
                                                                          A-3437-17T3
                                        15
