                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1562-17T2

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

          Plaintiff-Respondent,

v.

F.R.,

          Defendant-Appellant

and

D.M.-R,

     Defendant.
____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF V.R.
and S.R.,

     Minors.
_____________________________

                    Submitted December 18, 2018 – Decided January 9, 2019

                    Before Judges Hoffman and Firko.
              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Sussex County,
              Docket No. FG-19-0022-17.

              Joseph E. Krakora, Public Defender, attorney for
              appellant (Lauren M. Derasmo, Designated Counsel, on
              the briefs).

              Gurbir S. Grewal, Attorney General, attorney for
              respondent (Jason W. Rockwell, Assistant Attorney
              General, of counsel; Victoria Almeida Galinski,
              Deputy Attorney General, on the brief).

              Joseph E. Krakora, Public Defender, Law Guardian,
              attorney for minors (Noel C. Devlin, Assistant Deputy
              Public Defender, of counsel and on the brief).

PER CURIAM

        Defendant F.R. appeals from the judgment of guardianship terminating his

parental rights to his children, fourteen-year-old V.R. (Victor),1 and thirteen-

year-old S.R. (Sara). The children's Law Guardian and the Division of Child

Protection and Permanency (Division) urge us to affirm. Following our review

of the record, we affirm the judgment, substantially for the reasons stated by

Judge Michael C. Gaus in his oral opinion. The factual findings of Judge Gaus

are supported by substantial credible evidence, including his evaluation of




1
    We use initials and pseudonyms to protect the parties' privacy.
                                                                        A-1562-17T2
                                         2
witness credibility, and based on those findings, his legal conclusions are

correct.

                                        I

        The Division began investigating defendant when the children's mother

sought a restraining order against him in December 2013.           In seeking the

restraining order, she alleged defendant had raped her adult daughter, Julie,2 and

claimed she now feared for her younger children. 3

        Victor told investigators defendant made him and Sara sleep naked with

him and defendant touched his penis while in bed. Sara also said defendant had

rubbed her vagina. The Division sent the children for psychosocial evaluations

and later concluded the allegations of abuse were substantiated. In March 2016,

the Division placed the children with their older brother and his girlfriend, where

they remain.

        Defendant denied touching the children inappropriately and challenged

the Division's findings.     The Division referred the matter to the Office of

Administrative Law (OAL) for a hearing. However, when the children did not

testify at the hearing, the Administrative Law Judge (ALJ) determined the


2
    Defendant is not Julie's biological father.
3
    The children's mother died during the termination proceedings.
                                                                           A-1562-17T2
                                            3
Division had not produced sufficient credible evidence to substantiate the

charges.

        In September 2016, as part of a reunification process, defendant attended

a psychological evaluation performed by Dr. Barry Katz; however, defendant

did not respond to attempts to schedule follow up visits.        He also missed

appointments for psychiatric evaluations and failed to participate in individual

therapy. Defendant often lost contact with the Division for extended periods of

time.

        The children entered therapy and told their counselors "we don't see

[defendant] because he used to, like, sexually abuse us." According to Sara,

defendant exposed her to pornography.        She also disclosed that defendant

"touched my private, my butt and my boobies with his hand. He touched my

vagina inside and outside with his hand."

        In August 2016, the Division filed the guardianship complaint under

review. In July 2017, the matter proceeded to trial, where the children testified.

Defendant did not attend trial on the day of their testimony, but his attorney

appeared via telephone – without objection – due to an illness. Defendant's

counsel declined to question the children.




                                                                          A-1562-17T2
                                        4
      Victor testified his parents acted violently toward each other, with

defendant once hitting his mother's eye with a brush. He also testified defendant

touched him in bed and in the shower. The touching in the shower occurred

daily and made Victor feel uncomfortable and "weirded out." Victor does not

want to live with his father, does not want visits with his father, and wants to be

adopted by his older brother and his girlfriend.

      Sara testified she saw defendant grab her mother by the throat and that he

would smack her (Sara) on the "butt," making the area become very red.

Defendant would also touch her vaginal area. Like Victor, she does not feel safe

with defendant and does not wish to visit him.

      On the next day of trial, defendant sought to strike the children's testimony

on the grounds of collateral estoppel due to the ALJ's finding. The judge denied

the request.

      Dr. Katz testified as an expert in psychology and bonding. Defendant

admitted to him three incidents of oral sex with Julie. Dr. Katz said defendant

described Julie as a "prostitute" and admitted paying her for sex so she could

buy drugs.

      Defendant denied to Dr. Katz that he ever slept naked with his children,

but admitted to taking baths and showers with them. He also revealed that his


                                                                           A-1562-17T2
                                        5
primary income from 2006-2009 – the last time he worked – came from playing

cards online.

      Based on these admissions, Dr. Katz stated defendant exhibited impaired

impulses and poor boundaries with regard to the children, but did not conclude

defendant had committed sexual abuse of the children. Nonetheless, he opined

the children suffered from multiple traumas including domestic violence,

neglect, and inappropriate sexual behavior.     Dr. Katz stated removing the

children from their brother would be "catastrophic," leading to significant harm,

and that defendant could not ameliorate the harm of removal, but would likely

increase the harm.

      Defendant also testified at trial.   He denied hitting and hurting the

children's mother. He did not seek reunification with the children. After his

testimony, he requested his mother testify via telephone to rebut statements Dr.

Katz made about defendant's treatment of her. The court denied the request

because defendant had not provided advance notice he would present her

testimony.

      On appeal, defendant raises the following points of argument:

      I. STANDARD OF REVIEW




                                                                         A-1562-17T2
                                       6
II. THE MANY PROCEDURAL VIOLATIONS COMMITTED BY THE
     LOWER COURT MERIT REVERSAL OF THE TERMINATION OF
     PARENTAL RIGHTS

    A. The Lower Court Erred In Determining That Res Judicata And
       Collateral Estoppel Did Not Apply.

         1. The Issues Litigated In The OAL Are Identical To Those
            Litigated At Trial.

         2. The Issue Of F.R.'s Abuse Of His Children Was Actually
            Litigated In The OAL.

         3. Judge Monaco's Decision Is A Final Judgment On The
            Merits.

         4. The Determination Of Whether F.R. Abused His Children
            Was Essential To The Prior Decision And The Parties Are
            Identical.

         5. The Lower Court's Reliance On R.D. Is Misplaced.

         6. Collateral Estoppel Is Not Avoided With A Change In
            Nomenclature.

         7. The Lower Court Erred In Finding That It Was Not Bound
            By The OAL Decision.

         8. The Lower Court Erred In Not Applying The Entire
            Controversy Doctrine.

    B. The Lower Court Abused Its Discretion By Failing To Adjourn
       When Counsel Could Not Be Present. (Not Raised Below)

    C. F.R. Was Denied The Right To Notice Due To DCPP's Mid-Trial
       Change Of Reasons For Termination. (Not Raised Below)



                                                               A-1562-17T2
                            7
    D. The Lower Court Erred In Barring F.R.'s Mother From
       Testifying.

III. REVERSAL OF THE TERMINATION OF PARENTAL RIGHTS IS
     WARRANTED BECAUSE IT IS THE RESULT OF INEFFECTIVE
     ASSISTANCE OF F.R.'S TRIAL COUNSEL. (Not Raised Below)

    A. By Agreeing To Appear By Phone During The Children's
       Testimony Counsel Inappropriately Waived F.R.’s Rights. (Not
       Raised Below)

    B. Counsel Failed To Sequester DCPP's Expert Thereby Allowing
       The Expert To Alter His Testimony. (Not Raised Below)

    C. Counsel Failed To Object To The Introduction Of The Reports
       OF Experts Who Did Not Testify. (Not Raised Below)

IV. THERE IS NOT SUFFICIENT, CREDIBLE EVIDENCE TO
    SUPPORT THE TRIAL COURT'S DETERMINATION THAT
    DCPP HAS CARRIED ITS BURDEN OF PROOF AS TO ALL
    FOUR PRONGS OF N.J.S.A. 30:4C-15.1A

    A. F.R. Has Not Harmed His Children Within The Meaning Of
       N.J.S.A. 30:4C-15.1(a)(1).

    B. The Trial Court's Decision That The Second Prong Of The
       Statute Was Satisfied Was Not Supported By Substantial,
       Credible Evidence.

    C. The Record Does Not Contain Sufficient Evidence To Support A
       Finding That DCPP Met Its Burden Of Proof Under The Third
       Prong Of The Statute.

    D. The Conclusion That Termination Would Not Do More Harm
       Than Good Was Not Supported By The Evidence.




                                                            A-1562-17T2
                             8
                                        II

      We exercise limited review of a decision terminating a parent's rights.

N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007).

Factual findings supporting such a judgment "should not be disturbed unless

'they are so wholly insupportable as to result in a denial of justice,' and should

be upheld whenever they are 'supported by adequate, substantial[,] and credible

evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div.

1993) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474,

483-84 (1974)). The Family Part's findings should stand unless "they are so

manifestly unsupported by or inconsistent with the competent, relevant [,] and

reasonably credible evidence as to offend the interests of justice." Rova Farms

Resort, 65 N.J. at 484 (citing Fagliarone v. Twp. of N. Bergen, 78 N.J. Super.

154, 155 (App. Div. 1963)). However, we accord no special deference to the

Family judge's interpretation of the law and the legal consequences that flow

from established facts. See N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J.

145, 183 (2010).

      Defendant first argues four procedural errors warrant reversal: 1)

collateral estoppel should have prevented any further litigation of the abuse

claims; 2) the trial judge improperly coerced defendant's attorney to appear via


                                                                          A-1562-17T2
                                        9
telephone during the children's testimony; 3) the Division impermissibly

changed its reason for termination during the trial, depriving defendant of due

process; and 4) the trial court incorrectly barred defendant's mother from

testifying.

      Collateral estoppel "bars relitigation of any issue which was actually

determined in a prior action, generally between the same parties, involving a

different claim or cause of action." State v. Gonzalez, 75 N.J. 181, 186 (1977).

Defendant argues the OAL hearing on Title Nine abuse allegations litigated issues

identical to the Title 30 termination trial because both relied on allegations of sexual

abuse and misconduct. Our Supreme Court has outlined the process for when a

Title Nine hearing may have preclusive effect on a Title 30 case. See N.J. Div.

of Youth & Family Servs. v. R.D., 207 N.J. 88 (2011). In R.D., the court stated

"three major but basic" steps for the tribunal to follow. Id. at 120.

              First, the Title Nine court must provide advance notice
              to the parties that, if supported by the proofs, it will
              make its findings using the higher Title Thirty "clear
              and convincing evidence" standard; that notice must be
              clear and unequivocal, and must fairly and reasonably
              advise the parties that any Title Nine determinations
              made under the higher, clear and convincing evidence
              standard will have preclusive effect in any subsequent
              Title Thirty proceeding. Stated differently, the parties
              must be on fair notice that they will have one
              opportunity to litigate whether the parent is causing


                                                                               A-1562-17T2
                                         10
            harm to the child, and that opportunity will be during
            the Title Nine proceedings.

                  Second, the Title Nine court must make clear to
            the parties that, although the relief it may issue in the
            Title Nine portion of the proceedings is, by its nature,
            interim, the determinations made in respect of that
            interim relief – particularly those concerning harm to
            the child – may have preclusive effect on the final,
            permanent relief arising out of a Title Thirty
            proceeding. Third, and finally, to approximate parity in
            the proceedings, the Title Nine court must relax the
            time deadlines and, to the extent necessary, use in the
            Title Nine proceeding the admissibility of evidence
            standards applicable to Title Thirty proceedings.

            [Id. at 120-21].

      The record does not demonstrate the ALJ followed these procedural

guideposts nor that defendant requested the ALJ do so. Defendant argues

against R.D.'s application by citing factual differences between the cases: R.D.

involved an instance where the Division attempted to use collateral estoppel,

while this case presents the opposite scenario.

      However, the Court's guidance in R.D. clearly prohibits the ruling

defendant seeks. Unless the tribunal follows the steps outlined above, "Title

Nine determinations cannot be given collateral or preclusive effect in any

subsequent and related Title Thirty proceedings." Id. at 93 (emphasis added).




                                                                        A-1562-17T2
                                      11
Accordingly, the trial court did not err in rejecting defendant's collateral

estoppel argument.

      Defendant also argues the trial judge "pressured" his counsel into making

an appearance via telephone while sick. An examination of the record finds no

evidence to support this argument. Defendant's attorney stated ahead of time he

had no questions to ask of the children. In addition, the trial judge adjourned

the remainder of the scheduled proceedings on the day the children testified,

following their testimony, so that defendant's attorney could appear in person

for the remainder of the trial.

      Defendant argues the trial court deprived him of due process because

"[a]fter learning of the ALJ's decision reversing the substantiation of sexual

abuse, [the Division] altered the manner in which it attempted to proceed with

the trial." However, defendant did not raise the issue at trial, and therefore

cannot raise this issue on appeal. State v. McNair, 60 N.J. 8, 9 (1972); State v.

Johnson, 203 N.J. Super. 127, 133 (App. Div. 1985).

      Next, defendant wanted his mother to testify to rebut Dr. Katz. Defendant

requested she testify via telephone because of health concerns and because she

lived out of state.    To allow testimony via telephone, a proponent must

demonstrate two elements: 1) there exists an exigency or special circumstances


                                                                         A-1562-17T2
                                      12
compelling phone testimony over live testimony; and 2) there exists some

"circumstantial voucher of the integrity of the testimony" and the witness's

identity and credentials are known. State v. Santos, 210 N.J. 129, 141 (2012)

(citing Aqua Marine Products, Inc. v. Pathe Computer Control Corp., 229 N.J.

Super. 264, 275 (App. Div. 1988)). Here, neither the Division nor the Law

Guardian had ever spoken with defendant's mother. As such, neither party could

confirm her voice or identity via telephone, preventing defendant from

satisfying the second element of the test.      Accordingly, the court did not

improperly deny the telephone testimony.

      Defendant also makes three claims of ineffective assistance of counsel: 1)

trial counsel inappropriately agreed to appear by telephone during the children's

testimony; 2) trial counsel failed to sequester the Division's expert during the

collateral estoppel motion; and 3) trial counsel failed to object to the

introduction of reports of non-testifying experts.

      Parents in a termination proceeding have a right to effective assistance of

counsel. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 303 (2007).

To state a claim for ineffective assistance, one must demonstrate: 1) counsel's

performance fell outside the broad range of professionally acceptable

performance; and 2) counsel's deficient performance prejudiced the defense –


                                                                         A-1562-17T2
                                       13
i.e., there exists a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different. Ibid. Courts

recognize a "strong presumption" that counsel's assistance was reasonable and

effective. Ibid.

      "[A]ppellate counsel must provide a detailed exposition of how the trial

lawyer fell short and a statement regarding why the result would have been

different had the lawyer's performance not been deficient. That will include the

requirement of an evidentiary proffer in appropriate cases." Ibid. Critically,

defendant does not identify any prejudice suffered as a result of the alleged

ineffective assistance. As a result, defendant cannot succeed on an ineffective

assistance claim.

      Lastly, defendant argues the Division failed to satisfy the best interest

standard required in termination proceedings. To obtain termination of parental

rights, the Division must satisfy all four prongs of the following test:

            (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

                                                                           A-1562-17T2
                                       14
               serious and enduring emotional or psychological harm
               to the child;

               (3) The Division 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).]


      These four prongs are neither discrete nor separate, but overlap "to

provide a comprehensive standard that identifies a child's best interests." N.J.

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

Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)). "The

considerations involved are extremely fact sensitive and require particularized

evidence that address[es] the specific circumstance in the given case." N.J. Div.

of Youth & Family Servs. v. R.G., 217 N.J. 527, 554 (2014) (alteration in

original) (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 28

(2007)). The Division must prove by clear and convincing evidence all four

statutory prongs. Ibid. We will not overturn a family court's findings unless

they were "so wide of the mark that the judge was clearly mistaken." G.L., 191

N.J. at 605.


                                                                         A-1562-17T2
                                           15
      The first prong of the best interest test requires the judge to determine

whether "the child's safety, health, or development has been or will continue to

be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a). The

analysis examines the impact of harm caused by the parent-child relationship on

the child's health over time. N.J. Div. of Youth & Family Servs. v. P.P., 180

N.J. 494, 506 (2004). The analysis does not "concentrate on a single or isolated

harm or past harm" but rather focuses on "the effect of harms" arising over time.

In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The court is not

concerned only with actual harm to the children, but also with the risk of future

harm. In re Guardianship of DMH, 161 N.J. 365, 383 (1999). Further, the harm

need not be physical, as emotional or psychological harm may suffice. In re

Guardianship of K.L.F., 129 N.J. 32, 44 (1992).

      Here, the judge found the children credible witnesses. Victor testified his

father acted violently towards his mother. In addition, he often hit him hard

enough to make him cry. His father scared him, touched him in the shower, and

made him undress and get into bed with him. Defendant paid his adult step-

daughter for sex so she could buy drugs. Sara testified defendant would touch

her vaginal area, and that she witnessed defendant choking her mother. Like




                                                                         A-1562-17T2
                                      16
Victor, Sara did not feel safe around defendant.        These facts demonstrate

sufficient harm to the children in satisfaction of prong one.

      Under prong two, the Division must demonstrate "not only that the child's

health and development have been and continue to be endangered, but also that

the harm is likely to continue because the parent is unable or unwilling to

overcome or remove the harm." K.H.O., 161 N.J. at 348. The Division may

satisfy this prong by demonstrating the parent's inability or unwillingness to

resolve issues that are detrimental to the child. See N.J. Div of Youth & Family

Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996).          This prong

determines whether "the parent has cured and overcome the initial harm that

endangered the health, safety, or welfare of the child, and is able to continue a

parental relationship without recurrent harm to the child." K.H.O., 161 N.J. at

348 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

      Defendant's relies on his contention that prong one was not met by the

Division: if he did not harm the children, he could not resolve any harm. This

argument clearly lacks merit based upon the substantial evidence that defendant

harmed and endangered his children.

      With the third element, the Division must prove it "has made reasonable

efforts to provide services to help the parent correct the circumstances which led


                                                                          A-1562-17T2
                                       17
to the child's placement outside the home and the court has considered

alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a). The

analysis "contemplates efforts that focus on 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 foster care." K.H.O., 161 N.J.

at 354.

      Throughout the course of the litigation, the Division offered defendant

therapy; in addition, the Division offered psychological and psychiatric

evaluations in an attempt to create a plan for reunification. Defendant failed to

accept these services and also lost contact with the Division for significant

periods of time. At one point, the Division requested a search of Delaware

records in an effort to locate defendant so it could work on reuniting him with

his children. The record demonstrates the Division made reasonable efforts to

assist defendant.

      Lastly, the Division must demonstrate that "termination of parental rights

will not do more harm than good." N.J.S.A. 30:4C-15.1(a). The issue "is not

whether a biological mother or father is a worthy parent, but whether a chi ld's

interest will best be served by completely terminating the child's relationship

with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108


                                                                         A-1562-17T2
                                      18
(2008).

        To satisfy this prong of the analysis, the Division must "offer testimony

of a 'well-qualified expert who has had full opportunity to make a

comprehensive, objective, and informed evaluation' of the child's relationship

with both the natural parents and the foster parents." N.J. Div. of Youth &

Family Servs. v. A.R., 405 N.J. Super. 418, 442 (App. Div. 2009). The Division

"must prove by clear and convincing evidence that separating the child from his

or her foster parents would cause serious and enduring emotional or

psychological harm." J.C., 129 N.J. at 19.

        Here, the children both requested to stay with their brother and his

girlfriend. Both wished to be adopted by them, and expressed a strong desire

not return to their father's care.

        Further, Dr. Katz testified defendant possessed a "lack of understanding

of boundaries, lack of judgment, lack of empathy, and failure to protect his

children's interests." The children's brother, on the other hand, developed a

strong attachment with them. According to Dr. Katz, removing the children

from their brother would cause significant, enduring, and catastrophic harm on

them.     Defendant, however, could not mitigate the harm of removing the

children from their brother. Accordingly, we conclude the Division provided


                                                                         A-1562-17T2
                                       19
sufficient evidence to satisfy prong four.

      Affirmed.




                                             A-1562-17T2
                                       20
