                                      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                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-5424-17T4
                                                                     A-5425-17T4

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

C.J.R.,

          Defendant-Appellant/
          Cross-Respondent,

and

C.R.A.,

     Defendant-Appellant.
_______________________________

IN THE MATTER OF THE
GUARDIANSHIP OF A.A.R.
and C.L.A., Minors,

          Respondents/Cross-Appellants,

and
C.A.,

     Minor.
_______________________________

         Argued September 18, 2019 – Decided October 22, 2019

         Before Judges Whipple, Gooden Brown and Mawla.

         On appeal from the Superior Court of New Jersey,
         Chancery Division, Family Part, Essex County, Docket
         No. FG-07-0117-16.

         Adrienne Marie Kalosieh, Assistant Deputy Public
         Defender, argued the cause for appellant/cross-
         respondent (Joseph E. Krakora, Public Defender,
         attorney; Robyn A. Veasey, Deputy Public Defender,
         of counsel; Adrienne Marie Kalosieh, on the briefs).

         Eric R. Foley, Designated Counsel, argued the cause for
         appellant (Joseph E. Krakora, Public Defender,
         attorney; Robyn A. Veasey, Deputy Public Defender,
         of counsel; Eric R. Foley, on the briefs).

         Melissa R. Vance, Assistant Deputy Public Defender,
         argued the cause for respondents/cross-appellants
         (Joseph E. Krakora, Public Defender, Law Guardian,
         attorney; Melissa R. Vance, on the brief).

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




                                                                   A-5424-17T4
                                   2
              Todd S. Wilson, Designated Counsel, argued the cause
              for minor C.A. (Joseph E. Krakora, Public Defender,
              Law Guardian, attorney; Todd S. Wilson, on the brief).

PER CURIAM

      In these consolidated appeals, following a remand to the Family Part,

defendants C.J.R. (Cindy) and C.R.A, (Charles) both appeal from the judgment

terminating their parental rights to their children A.A.R. (Anne), C.L.A.

(Claire), and C.A. (Chip).1      Anne and Claire cross-appeal the entry of

guardianship as to them. The issue on appeal is whether the Division of Child

Protection and Permanency (Division) proved by clear and convincing evidence

that parental rights should be terminated pursuant to N.J.S.A. 30:4C-15.1(a).

We reverse.

      The facts in the record of the original trial are also recounted fully in our

previous decision, N.J. Div. of Child Protection & Permanency v. C.J.R., 452

N.J. Super. 454, 458, 463-64 (App. Div. 2017), therefore, we repeat only those

necessary to address the issues raised here.

      The Division's involvement with the family began in February 2014, after

defendants brought six-week-old Chip to the emergency room for medical



1
  For simplicity, we refer to the parties by the same pseudonyms as used in the
prior Appellate Division decision.
                                                                           A-5424-17T4
                                        3
treatment. Chip had suffered four rib fractures as well as head trauma, including

brain contusions and subdural hematomas, injuries a consulting physician

concluded were consistent with physical abuse, but ones for which defendants,

the child's only caregivers, offered no explanation. Id. at 458-59. All three

children were removed from defendants' care but were returned to their custody

that October. Ibid.

      In November 2014, Chip was rushed to the hospital after having a seizure.

Id. at 459. Tests revealed subdural hematomas, not attributable to his prior

condition, and "extensive multi-layered retinal hemorrhages." Id. at 459-60.

Although Cindy reported that Chip fell from a sitting position on the floor and

hit his head a few weeks earlier, an emergency room physician opined the

injuries were likely sustained just a few days prior and, absent any explanation,

were indicative of physical abuse. Ibid. All three children were again removed

from defendants' care. Id. at 460.

      After a hearing, the Family Part judge found, by the heightened standard

of clear and convincing evidence and relying on a burden-shifting paradigm

permissible under Title Nine, that both defendants abused and neglected Chip.

Id. at 461-62. In light of that heightened standard, the judge gave the abuse and

neglect finding preclusive effect at the subsequent termination proceeding,


                                                                         A-5424-17T4
                                       4
concluding that the Division thereby met its burden as to the first prong of the

applicable best interest standard. Id. at 464, 467. Ultimately, the judge found

the Division also satisfied its burden as to the balance of the standard and

therefore, the defendant's parental rights should be terminated as to all three

children. Id. at 467.

      We reversed, concluding that a finding made using the burden-shifting

paradigm authorized only under Title Nine could not be given preclusive effect

in a Title Thirty guardianship proceeding, and remanded the matter for a new

trial to be completed within sixty days. Id. at 470-75. We also noted the court

made findings as to Chip on all except the first prong of the standard, but "made

no specific findings under prongs one or two regarding Claire and Anne." Id. at

474. We explained:

            While N.J.S.A. 9:6–8.46(a)(1) provides that "proof of
            the abuse or neglect of one child shall be admissible
            evidence on the issue of the abuse or neglect of any
            other child of . . . the parent," this does not mean that
            harm to one child is conclusive proof of harm to another
            child. The Title Nine findings made by the judge were
            confined to consideration of whether Chip was abused;
            there were no explicit findings that either Anne or
            Claire were abused or neglected. Moreover, the
            Division caseworker conceded neither was harmed,
            meaning that any harm attributed to have been visited
            upon either girl was derived from the harm to Chip.
            Therefore, the determination of the judge terminating
            Charles and Cindy's parental rights to Claire and Anne

                                                                         A-5424-17T4
                                       5
             was not supported by sufficient credible evidence, and
             was in error. We therefore vacate the judgment of
             guardianship entirely as to Claire and Anne.

             [Id. at 474-75.]

       However, we continued that, "we believe that going forward from here,

the trial court should be allowed to consider each prong in the light of any

developments since trial, and shall have the discretion to permit any updated

evaluations or discovery that may be warranted." Id. at 475. We then directed

that a new trial be conducted on remand within sixty days with no indication

that the trial must be limited to Chip. Ibid.

       On remand, the Family Part judge, at a permanency hearing on March 23,

2018, found by a preponderance of the evidence that it was not safe to return the

children to defendants due to the significant injuries Chip suffered in 2014. The

Family Part judge approved the Division's plan to retry the matter as to all three

children,2 but did not meet our sixty-day deadline. Rather, the court sought an

extension lasting until May 11, 2018, because the previous trial judge was out

of state. The trial judge further requested a second extension from this court,

which we granted. The case was finally retried six months after the remand




2
    The record does not include a new permanency order.
                                                                          A-5424-17T4
                                        6
order. In the remand proceedings, Chip was represented by one law guardian

and his sisters by another.

      A five-day trial took place via audio video conferencing before the same

judge who presided over the first trial, who was no longer sitting in Essex

County. The record is silent as to why the trial was conducted by a judge who

both viewed and listened to testimony remotely from chambers in another

county. He heard testimony from the following witnesses: Dr. Monica Weiner,

the medical doctor who testified about Chip's injuries in the first trial; Latoya

Bowers, the Division caseworker; Dr. Carolina Mendez, the Division's expert;

Dr. Andrew Brown, Cindy's expert; Dr. Elizabeth Smith, a forensic psychology

and bonding expert who evaluated defendants' bonds with Chip; and Dr. Eric

Kirschner, who conducted bonding evaluations as to the girls.

      Regarding the injuries from February 2014, Dr. Weiner again testified that

Chip had suffered acute posterior rib fractures consistent with squeezing the

child's torso or applying force in some other manner, such as shaking, and that

Chip's birth three weeks prior could not cause these fractures. Dr. Weiner

further opined that a seizure could not cause the subdural and retinal

hemorrhages from which Chip was suffering when admitted to the hospital in

November 2014. Consistent with her prior testimony, she concluded that the


                                                                         A-5424-17T4
                                       7
injuries were caused by trauma, but could not rule out accidental trauma, noting

that no accidental trauma was reported that would have generated enough force

to cause the injuries given Chip's age and limited mobility.

      Latoya Bowers, the Division caseworker, testified that following each

removal, Anne and Claire, were placed in one resource home and Chip, in

another. The Division provided the parents with weekly visitation and arranged

bonding and psychological evaluations. It also considered Charles' sister and

Cindy's mother as potential relative placements for the children, but Charles'

sister did not have space to accommodate the children and Cindy's mother was

under investigation in a placement matter related to Cindy's nieces.

      Bowers testified that since the second removal, Cindy completed two

rounds of therapy and parenting skills instructions.           Cindy successfully

completed services in 2015, and the Division did not ask her to undergo

additional services geared toward reunification. However, the Division worker

did not go out to see the apartment Cindy rented in anticipation of reunification,

conceding that there was no excuse for not having done so.

      Defendants' visits with the children initially took place at a Division-

approved program, but following the first trial, visits took place with the

resource parents, sometimes lasting up to six hours. The girls' resource parents


                                                                          A-5424-17T4
                                        8
notified defendants when the girls had softball games, which defendants

attended. Bowers noted that, during visits, Anne and Claire were happy and

excited to see their mother. Although the girls were doing well in resource

placement, Anne was having trouble at school, and told her teacher she did not

have to do school work or listen anymore because she was going home with her

mother. On several occasions, Chip's resource parents reported Cindy seemed

"cold" during visits, simply handing Chip her cell phone to play games while

she sat back. They had fewer concerns with Charles, who was more attentive to

Chip.

          Defendants separated in 2015 and both agreed that all three children

should live with Cindy alone, Bowers stated. However, both sets of resource

parents were committed to adopting the children for whom they provided care.

Bowers observed no concerns in either resource placement during her monthly

visits.

          Four experts conducted updated bonding and psychological evaluations,

and testified as to their results. The Division's expert, Dr. Carolina Mendez, and

Cindy's expert, Dr. Andrew Brown, each evaluated defendants' bonds with Chip

and with the girls. Dr. Elizabeth Smith, an expert in forensic psychology and

bonding, conducted bonding evaluations that related to Chip only, while Dr. Eric


                                                                          A-5424-17T4
                                         9
Kirschner conducted bonding evaluations specific to the girls. All four experts

concluded the results of the updated bonding evaluations were positive, as the

children established bonds with both their biological parents and with their

resource parents.

      Kirschner and Brown both recommended reunification of the girls with

Cindy. Brown also recommended returning Chip to Cindy's care, whereas

Mendez and Smith recommended terminating defendants' parental rights to all

of the children based solely on the parents' inability to explain what or who

caused Chip's injuries.

      All of the experts who conducted updated bonding evaluations of Cindy's

relationship with Anne and Claire, who at the time were seven and six years old

respectively, concluded the girls were highly attached to their mother in a strong,

positive bond. Kirschner and Brown both testified that Cindy was Anne's and

Claire's primary attachment figure, and Mendez similarly testified that the girls

"had no reservations about their preference" to live with their mother. Brown

testified that severing the girls' relationship to Cindy would likely have

"psychologically devastating" consequences for both girls and "would induce a

significant harm . . . and trauma that could never be mitigated" by the resource

parents. Kirschner similarly testified that termination of parental rights could


                                                                           A-5424-17T4
                                       10
cause the girls to suffer "serious and enduring harm." Mendez opined the girls

had an "equal bond with their mother and their resource mother," but agreed

there was "no doubt that if parental rights were terminated, the girls would suffer

. . . severe and enduring psychological harm." Nonetheless, Mendez believed

the resource parents could mitigate that harm.

        In an interview Brown conducted with Anne alone, Anne stated that she

wished "all the time" she could be with her mother. She cried for her mother

and said she would be "very upset" if she never saw her again. Brown opined

Anne had a deep emotional attachment to Cindy and that severing the

relationship "would serve no purpose but to induce harm in this child." Claire

also told Brown, in a private interview, that she missed her mother, dreamt about

her, and would be sad if she never saw her again.3            Brown opined that

terminating Cindy's parental rights could lead Claire to suffer "severe emotional

trauma" that could lead to "truncated psychological development." Both Anne

and Claire stated they wanted to live with their brother as well. Brown opined

that, even with the aid of psychotherapy, the resource parents would be

incapable of mitigating any harm to the girls resulting from the severance of

their relationship with their mother.


3
    None of the children testified.
                                                                           A-5424-17T4
                                        11
      In regard to Chip, Brown opined that Chip also had a healthy, positive

attachment with Cindy and to his big sisters, who appeared to operate as a family

unit. Cindy was more capable, in Brown's view, than the resource parents of

keeping up with Chip, an active child who was full of energy. The resource

parents, who were in their sixties, struggled to keep up with and play with Chi p

during the bonding evaluation.      As with the girls, Brown believed that

terminating Cindy's parental rights to Chip would destroy his healthy, positive

attachment to her and to his sisters. Brown opined that as Chip grows and

develops, he would wonder about his mother and sisters if not reunited with

them, and "in the long run," severing those attachments would result in greater

harm. Severing Chip's relationship with his resource parents would not cause

severe and enduring harm, in Brown's view, because he already developed a

positive and healthy attachment to Cindy and to his sisters.

      Mendez and Smith both testified that in their opinions, Chip's primary

attachment was his resource mother. Smith conceded, however, that Chip was

also positively bonded with Cindy and Charles and would miss them if not able

to see them anymore. Smith noted Chip called both defendants and the resource

parents "mommy" and "daddy."




                                                                         A-5424-17T4
                                      12
         In Smith's view, compelling factors for a child of Chip's age (four years

old) were his age at the time of placement and the length of time in place ment.

At the time, Chip was in placement nearly his entire life, with the exception of

the first two weeks of his life and the six weeks he was briefly reunified with

defendants prior to the second removal.

         Mendez was similarly concerned with depriving the children of

permanency further, as permanency is important to a child's health and

development. Accordingly, Mendez concluded that termination of defendants'

parental rights was in the best interests of all three children, because " [t]he most

important relationships that need to be maintained" were the children's

relationships with their respective resource parents.

         As to ending the relationship the girls had with their resource parents,

Mendez, Kirschner, and Brown all agreed it would have a harmful effect on the

girls.     Nonetheless, Kirschner and Brown agreed Cindy was capable of

mitigating those harmful effects. 4 Brown noted that Cindy was aware the

children could not simply be removed immediately from resource placement,

but would start with overnight and weekend visitation and expand from there.


4
   Mendez did not directly address in her testimony whether she believed
defendants were capable of mitigating the harm to the girls from severing their
relationship to their resource caretaker.
                                                                             A-5424-17T4
                                        13
Kirschner recommended family counseling for Cindy and the girls if

reunification occurred. He believed the strength of the maternal relationship

could potentially mitigate any anxiety to the girls stemming from the loss of the

relationship with the resource parents. He further noted that Cindy was open, if

reunification occurred, to allowing the children to maintain a relationship with

their respective resource parents.

      Kirschner and Mendez both agreed the bond between Charles and the girls

was generally positive and appropriate. However, Kirschner concluded it was

not realistic or feasible to return the children to Charles' care, both based on his

psychological assessment, and because Charles did not portray himself as able

to assume care of the children.

      None of the expert witnesses expressed any concerns about the results of

Cindy's updated psychological evaluations.       Mendez testified Cindy "made

significant achievements" since the first trial, in that she had stable housing and

steady employment. She noted Cindy participated in counseling from which she

learned "how to better handle her negative emotions." Cindy also stated to

Mendez that if reunified with her children she would require all of Charles' visits

to be supervised, which showed Mendez that Cindy recognized there was a

concern with Charles.


                                                                            A-5424-17T4
                                        14
      Similarly, Smith viewed Cindy as "a very intelligent, very sincere

person[,]" who "works hard" and was "pursuing more education to . . . better

support her children." The sticking point for both Mendez and Smith was their

perception of Cindy's response to Chip's injuries. Mendez worried that Cindy

"used the language of acceptance and moving on," even though she did not know

how the injuries occurred. In Mendez's view, "[a]ny reasonably well-adjusted

parent would want to know what happened to their son, would want to figure it

out," and "would not . . . stop asking questions until she figured it out." Smith

was similarly troubled that neither parent seemed concerned about discovering

what happened to Chip.

      Kirschner found no evidence of any significant psychological dysfunction

or impairment that would affect Cindy's parenting. He believed she came to "a

psychologically healthier place" since his prior testimony at the first trial—when

she had only recently separated from Charles and had not yet demonstrated she

could be self-sufficient. Cindy had since benefited from therapy, according to

Kirschner, which allowed her to focus on trying to be present for her children in

the best way possible, a psychologically healthier perspective than focusing on

things she could not control. Although Cindy was unable to offer an opinion as




                                                                          A-5424-17T4
                                       15
to how Chip's injuries had occurred, she showed an ability to cope with what

happened in a healthier way through therapeutic treatment.

      Like Kirschner, Brown concluded Cindy was "capable of providing

stability and a safe environment for her children." Cindy lived on her own in a

two-bedroom apartment since February 2018, worked as a mortgage processor,

and complied with all recommended services. Brown was not concerned, as

Mendez was, that Cindy psychologically "move[d] on" from inquiring further

about her son's injuries, because, according to Brown, that is the goal and

mission of psychotherapy.

      Brown's impression was that Cindy's only contact with Charles, as of trial,

was during visitation. Brown opined Cindy was committed to her children,

wanted to remain in their lives, and demonstrated the stability to be able to raise

the children in her home. Brown also agreed that Cindy knew the children could

not simply be removed immediately from resource placement, and supported

gradual reunification.

      Cindy also testified. She stated she met Charles when she was seventeen

and recounted the history of their relationship, noting from early on, Charles had

a drinking habit which often led to verbally aggressive behavior. Charles never

hit Cindy, but he would hit furniture at times, and scream loudly. Charles began


                                                                           A-5424-17T4
                                       16
drinking less during Cindy's first pregnancy, when she was nineteen, and shortly

thereafter he gave up drinking altogether, which led Cindy to believe Charles'

behavior would improve. Cindy asserted that even after he stopped drinking,

however, Charles continued to aggressively argue with Cindy.

      Cindy recounted how Charles never participated equally in parenting, but

would instead come home from work tired and want to eat and sleep rather than

be involved with the children as a father. After Chip was born, Charles became

increasingly annoyed with Cindy's preoccupation in caring for both their

children as well as Cindy's two young nieces, who lived with them at the time.

      Prior to Chip's birth, and up until his removal, Cindy's nieces, about eight

and seven years old, were placed in defendants' home on a temporary basis.

While in defendants' custody, the older niece, who is schizophrenic, engaged in

troubling behaviors such as cutting up family pictures and hiding food in

drawers. The niece also once reportedly opened a car door on the Garden State

Parkway and attempted to jump out. Both nieces had a tendency to play rough

with Anne and Claire.

      Cindy further testified that on one occasion, when she was eight months

pregnant with Chip, she became frustrated during an argument with the older

niece and slapped her, causing the child to fall and injure her chin on the railing


                                                                           A-5424-17T4
                                       17
of her bed. Although the niece was not badly hurt, the chin injury left a mark

and led to a Division referral. A Division caseworker advised Cindy against

using corporal punishment, but did not substantiate abuse. Cindy testified that

she felt terrible about the slap and did not apply corporal punishment to any

child thereafter.

       After Chip's birth, in January 2014, Cindy testified that she made it a habit

to be in the room when her nieces wanted to touch the baby, and she never saw

them behave roughly around Chip. Following the first removal, Cindy testified

that she initially suspected that her nieces might have hurt Chip. She testified

in the first and second trials she had doubts and concerns about whether Charles

may have caused the injuries. She reported confronting him numerous times, to

which Charles would respond by becoming irate and defensive, screaming that

"he didn't do it," that he loved Chip, and that he waited his whole life to have a

son.

       When Chip returned to the family for six weeks in fall of 2014, Cindy's

nieces no longer lived there. Before the second removal, Cindy recalled Chip

appeared sick, weak, and not able to keep food down. Cindy took him to the

emergency room where the child was diagnosed with eye and ear infections and

was prescribed antibiotics.


                                                                            A-5424-17T4
                                        18
      By his second day on antibiotics, on November 18, 2014, Cindy stated

that Chip's mobility improved and he could move around more. At one point,

Cindy testified she put Chip down in his playpen for a nap and told Charles to

watch him while she went upstairs to bathe their daughters. About three or four

minutes after going upstairs, Cindy heard Chip "scream very loudly," and that

"it was not a normal cry like if he just woke up from a nap." Cindy asserted that

as she entered the room, she observed Chip having a seizure as Charles was

trying to lift him out of the playpen. This was the first time Cindy s aw Chip

have a seizure, a condition she recognized because it runs in her family. Cindy

stated that she screamed at Charles, asking him what happened, and Charles

replied that he did not know. Cindy called an ambulance and went to the hospital

with Chip. At the hospital, medical testing revealed Chip's subdural hematomas

and retinal hemorrhages that led to the second removal. See C.J.R., 453 N.J.

Super. at 459-60.

      Cindy testified she was immediately suspicious of Charles after the second

injury, both because she never hurt Chip and because she perceived Charles to

be "very cold about everything," while Cindy described herself as "freaking out"

and panicking.      Cindy confronted Charles again about Chip's injuries, and

Charles continued to be defensive and irate. Cindy stated he would get angry


                                                                         A-5424-17T4
                                      19
and walk away when she brought up the conversation and tell her she "should

know better that it wasn't him."

      Despite this, Cindy did not tell the Division she was suspicious of Charles,

but offered to take a lie detector test to prove her innocence. Cindy did not

believe her daughters could have injured Chip, because the injuries sustained

were inconsistent with those that would result from being picked up by a five or

six-year old.

      Cindy noted that her second round of therapy, which took place after the

second removal of her children, helped her interpret and cope with her feelings .

She also stated it helped her acknowledge that even though she "may never have

an answer to what exactly happened" with respect to Chip's injuries, she "still

needed to move on in order to have a healthy life" for herself and her children.

      Cindy testified she had a great relationship and close bond with all three

children, that she never hurt them, and that she would not do so in the future.

To discipline them, Cindy asserted she would do brief time-outs or, for the older

children, take away their toys. She testified she never used drugs and rarely

drinks alcohol.

      Cindy testified she would have no difficultly reuniting with the children.

Chip would have his own room in Cindy's two-bedroom apartment, the girls


                                                                          A-5424-17T4
                                      20
would share the other bedroom, and Cindy would sleep in the living room. As

of trial, however, the Division had not conducted a safety assessment of Cindy's

home. Cindy further testified that she would work while the children were at

school and would enroll the children in after-school activities. She testified she

would never again have a relationship with Charles, but if the children were

reunified with her, she would allow Charles only weekly supervised visits.

      Cindy acknowledged if the children were removed from their resource

homes, they would be upset at first. However, she intended for the resource

parents to always have a place in the children's lives, as the children "see us like

one big happy family." For example, Chip calls his resource parents "mama,"

and "papa," terms that a child, in Puerto Rican culture, would use for his

grandmother and grandfather, respectively, she noted. She stated it was good

for the children to have "another person who loves them" and did not see any

benefit in taking that away. She would rather the children just have three sets

of grandparents.

      As part of a gradual reunification process, Cindy anticipated allowing the

children sleepovers at the resource parents' homes periodically or on weeken ds

and having the group still celebrate events and holidays together. Cindy was

willing to engage in family therapy or other services to help the children with


                                                                            A-5424-17T4
                                        21
the transition. Conversely, if her parental rights were terminated, Cindy did not

believe she would be able to see her children as often, because at times, her calls

to the resource parents went unanswered.

        On the last day of trial, immediately after closing arguments, the court

rendered an oral decision that all four prongs of the "best interest" test were met.

The court entered an order of guardianship as to all three children on July 10,

2018.

        On July 27, 2018, defendants filed appeals.            The appeals were

consolidated. On August 10, 2018, the Law Guardian for Anne and Claire joined

the appeal.

        Our review of a trial judge's findings and decision to terminate parental

rights is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261,

278-79 (2007) (citation omitted).         We do not reverse the family court's

termination decision "when there is substantial credible evidence in the record

to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196

N.J. 88, 104 (2008) (citation omitted).

        We defer to the trial court's credibility findings and fact-findings because

of its expertise in family matters and its ability to develop a "feel of the case

that can never be realized by a review of the cold record." N.J. Div. of Youth


                                                                            A-5424-17T4
                                        22
& Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010) (citation omitted).

This court should not disturb these findings unless they are "so wide of the mark

that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v.

G.L., 191 N.J. 596, 605 (2007) (citations omitted).

      Parents have a constitutionally protected right to raise their biological

children, even if the children are placed in the care of a resource family. In re

Guardianship of J.C., 129 N.J. 1, 9-10 (1992) (citing Santosky v. Kramer, 455

U.S. 745 (1982)). The State may act to protect the welfare of the children, but

this is a limited authority, applying to circumstances where the parent is unfit or

the child has been harmed or placed at risk of harm. Id. at 10; N.J.S.A. 30:4C-

12; see N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 34-35 (2013).

      To prevail in a proceeding to terminate parental rights, the Division must

establish each element of the "best interests 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
            serious and enduring emotional or psychological harm
            to the child;

                                                                           A-5424-17T4
                                       23
            (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 "relate to and overlap with one another to provide a

comprehensive standard that identifies a child's best interests."           In re

Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The State must prove each

prong of this test by clear and convincing evidence. N.J. Div. of Youth & Family

Svcs. v. R.G., 217 N.J. 527, 559 (2014). Additionally, courts may not use

presumptions of parental unfitness and any "doubts must be resolved against

termination of parental rights." K.H.O., 161 N.J. at 347.

      On appeal, Cindy argues the judge erred in terminating her parental rights

because the Division did not establish she was responsible for the harm to her

children under prongs one and two of N.J.S.A. 30:4C-15.1(a). She also argues

the Division offered no evidence as to Anne and Claire beyond what was

presented in the first trial, which resulted in a reversal. Finally, Cindy argues

the expert evidence was in equipoise, at best, as to prong four, and therefore the

Division did not meet the standard of clear and convincing evidence.


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      Charles argues he, as well as Cindy, were deprived of a fair trial because

the judge was not physically present in the courtroom but conducted the entire

trial remotely through an audio video feed. 5 Charles also argues the judge

misapplied the law and ignored the directive of this court by relying upon the

shifted burden of proof. He also raises the arguments raised by Cindy. It is

significant that Charles is not asking to be reunified with his children but asks

they be returned to their mother.

      Anne and Claire argue the Division again failed to show the parents

harmed them or would continue to harm them and that they wished to be reunited

with their mother.

      Having reviewed the trial record in its entirety we are constrained to

conclude there is not "substantial credible evidence in the record to support the

court's findings." E.P., 196 N.J. at 104. We previously instructed the Family

Part that its decision to give preclusive effect to the Title Nine fact-finding in

the Title Thirty proceedings, which shifted the burden to defendants and

required them to rebut the presumption of abuse and neglect through their own

evidence, created an unconstitutional asymmetry we consider to be plain error



5
  The record does not identify whether this was done via Skype or some other
audio video feed.
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                                       25
on a critical question of law warranting reversal.           The record herein

demonstrates the essential error was repeated by the trial court.

      As to Chip, the court considered prongs one and two together. The court

noted that unrefuted testimony established that Chip's two life-threatening

injuries "were caused by physical abuse by one of the parents." The court then

asked, rhetorically, "what type of monster or person could inflict these types of

injuries on a baby and a small child?" The court added this was a question "the

parents should have been asking," and that defendants were the only two people

in the courtroom who knew what happened to Chip since one parent caused the

injuries and the other knew who was responsible. The court said:

            I have no way of knowing sitting here who actually
            committed this horrific abuse . . . [but] one of the two
            people sitting in this courtroom is an abuser and capable
            of doing tremendous harm to a child, and the other one
            was an enabler and excuser and stuck her head in the
            sand.

The court found that there was harm under prongs one and two—both "harm

from the abuse," and "harm from protecting it."

      The court noted that Smith and Mendez testified there existed "a

substantial clear and present danger and substantial risk of harm" to the children

that defendants had not alleviated. The harm involved both the abuse and the

subsequent removal.     Notwithstanding the positive bonding reports of the

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                                       26
Division's own expert, the court disbelieved the "false picture" of a "happy

family" the court believed defendants were presenting and stated that

reunification, "which the parents have apparently instilled in their children with

these visitations, is a myth."

      Cindy's testimony that she had suspicions about Charles seemed, in the

court's view, to be "measured, rehearsed," and "designed to present herself in

the best light." The court was also concerned that Cindy had continued to live

with Charles for ten months after the second removal and further believed Cindy

was "sweeping the dirt under the rug" by "moving ahead with this case." The

judge offered no assessment of the fact the parties had not lived together for

over three years. The judge did not appear to consider the evidence presented

by the Division and its experts regarding Cindy's progress as well as her

separation from Charles, and did not address her current situation. The court

rejected Brown's testimony that the mission of psychotherapy was to "move on,"

noting: "I can't believe any psychologist should take the stand and say those type

of things and believe that the child is now safe because they've gone past it."

The court was skeptical that, through therapy, Cindy had achieved "great

psychological insight and . . . great benefit," notwithstanding that all of the

experts testified she had made progress.


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                                       27
      With respect to the girls, the court found that they also suffered harm

under prongs one and two from twice being removed from their home and that

defendants had still "not dealt with this clear and present danger that exists in

this case." The court noted it did not know how Cindy would be able to monitor

Charles on visits if she was reunified with the children. Defendants had "not

come forward to deal with whatever happened four years ago" and remained "in

the same position" as then.

      With respect to prong three, the court held that the Division made

reasonable efforts and that the court did not know "if there is a service that will

change these people or change these parents to have them recognize where they

are or where they should be," but that, in any event, the Division provided

visitation, assessed relatives, and provided psychological counseling and

evaluations.

      With respect to prong four, as to Chip, the court found it clear that

terminating Chip's relationship to his foster parents would cause more harm than

terminating Cindy's and Charles' parental rights. The court opined without

support from the record that Chip, an infant when removed, had no memory of

living with defendants or his sisters and had bonded well with his resource

parents with whom he had lived for most of his life.


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                                       28
      As to the girls, the court noted that their resource parents had also

developed good relationships with them and met their needs for four years. The

girls, despite living apart from their parents that whole time, had thrived. The

court noted that the resource parents had shown "every inclination to keep a

relationship with the natural parents" voluntarily, without any court ord er, and

questioned why they would stop doing so if defendants' parental rights were

terminated. The court noted that "with appropriate counseling," the termination

of defendants' parental rights to the girls would "not do more harm than good"

and that "returning them to their parents would do extensive harm." Given the

opinions presented at trial by all of the experts, we consider these findings about

the girls "wide of the mark."

      In addition, the trial judge's finding with regard to the first and second

prongs, that he could not determine from "sitting here who actually committed

this horrific abuse . . . [but] one of the two people sitting in this courtroom is an

abuser and capable of doing tremendous harm to a child, and the other one was

an enabler and excuser and stuck her head in the sand," was indeterminate.

      Under N.J.S.A. 30:4C-15.1(a), the Division must prove by clear and

convincing evidence termination is in the best interest of the child. New Jersey

Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citing New


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                                        29
Jersey Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 113 (2011)). Our

Supreme Court has determined the clear and convincing evidence standard is

satisfied when, in the mind of the factfinder, there is a "firm belief or conviction

as to the truth of the allegations sought to be established, evidence so clear,

direct and weighty and convincing as to enable the factfinder to come to a clear

conviction, without hesitancy, of the precise facts in issue." New Jersey Div. of

Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010) (quoting In re Seaman,

133 N.J. 67, 74 (1993) (citation, internal quotation and editing marks omitted)).

"Because of the elemental nature of the parent-child relationship, and

recognizing that the severing of that relationship is among the most 'severe and

. . . irreversible' forms of state action," E.P., 196 N.J. at 102 (quoting Santosky,

455 U.S. at 759), courts "consistently impose[] strict standards for the

termination of parental rights" and "all doubts must be resolved against

termination of parental rights." K.H.O., 161 N.J. at 347 (citations omitted). The

issue under the statute is "the 'best interests of any child,' not simply the presence

or absence of culpable fault on the parent's part." In re Guardianship of R., 155

N.J. Super. 186, 195 (App. Div. 1977) (quoting N.J.S.A.30:4C-15(c)).

      The clear and convincing standard of proof requires that the result shall

not be reached by a mere balancing of doubts or probabilities, but rather by


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                                         30
rigorous evidence which convinces the fact finder that the allegations sought to

be proved are true. The issue of how Chip sustained his injuries is critical to all

four factors.

       We reject the Division's assertion that it established by clear and

convincing evidence the children's health and development will continue to be

harmed by a parental relationship with Cindy. The record demonstrates Cindy

and Charles both present differently from the parents they were when the

litigation began and present differently as individuals now. They are no longer

together as a couple. Charles is not asking for the children to be reunited with

him.   Cindy successfully completed services in 2015, and since then, the

Division has not asked her to undergo additional services geared toward

reunification. The Division worker conceded they did not inspect the apartment

Cindy rented for herself and the children.         The court treated the parents

monolithically by failing to differentiate between the parents individually and

by disregarding their current respective circumstances. Likewise, the court also

treated the children in a monolithic fashion, despite the differences in their

experiences, both as to the abuse and the time spent with their parents pre-

removal. The Division offered no new evidence of harm to the two girls as a

result of their relationship with their mother or their father.


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                                        31
        We reverse the entry of guardianship with instructions to the Family Part 6

to reunite Anne and Claire with their mother within fifteen days. We recognize

reunification with Chip is more complicated.         We conclude, however, the

Division did not meet its burden of proof as to Chip and we also reverse the

entry of guardianship as to him. We are mindful of the legitimate concerns

raised by the Division and its experts and we do not order the immediate

reunification of Chip with his mother. The matter shall continue under the abuse

or neglect (FN) docket with reconsideration of the plan for permanency. We

note the trial judge did not consider or discuss alternatives to termination such

as kinship legal guardianship, and those alternatives should now be explored.

See N.J. Div. of Child Prot. & Permanency v. M.M., 459 N.J. Super. 246 (App.

Div. 2019).

        While we recognize the risks attendant to returning a twice-injured child

to a parent under the circumstances presented here, we remind the parties the

Division is not without the ability to continue to monitor a family in need of

services and to reinstitute litigation for as long as is necessary. The Supreme

Court of the United States stated in Rivera v. Minnich,



6
    We direct this matter be assigned to the Presiding Judge of the Family Part.


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                                        32
            "natural parents have no 'double jeopardy' defense"
            against the State's repeated efforts to terminate parental
            rights. If the State initially fails to win termination . . .
            it always can try once again as family circumstances
            change or as it gathers more or better evidence. "Even
            when the parents have attained the level of fitness
            required by the State, they have no similar means by
            which they can forestall future termination efforts."

            [483 U.S. 574, 582 (1987) (quoting Santosky, 455 U.S.
            at 764).]

The imposition of a higher standard of proof protects the parents, and to some

degree the child, from renewed efforts to sever their familial ties.

      We add the following comments about the manner in which the case was

tried. We need not reach the issue of whether a trial conducted remotely by a

judge over video and audio conferencing deprived the parties of a fair trial.

Although no evidentiary rule specifically governs the admissibility of either

telephonic or remote video testimony, both Aqua Marine Prod., Inc. v. Pathe

Computer Control Systems Corp., 229 N.J. Super. 264, 275 (App. Div. 1988)

and State v. Santos, 210 N.J. 129, 142 (2012) framed the admissibility of remote

testimony as an evidentiary admissibility issue.

      We recognize some situations require flexibility. See, eg., N.J.S.A. 2A:4-

30.155(f) (stating in child support proceedings, "a tribunal of this State shall

permit a party or witness residing outside this State to . . . testify under penalty


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                                        33
of perjury by . . . audiovisual means."); N.J.S.A. 2A:34-63(b) (stating in a child

custody proceeding, "[a] court of this State may permit an individual residing in

another state to . . . testify by telephone, audiovisual means or other electronic

means before a designated court or at another location in that state."); R. 1:20-

6(c)(2)(A) (allowing, in attorney disciplinary hearings, the acceptance of

testimony by video "[i]f special circumstances dictate"); R. 1:20A-3(b)(4)

(allowing, in arbitration proceedings, for the acceptance of testimony by video

"[i]f special circumstances dictate"); R. 7:8-7(a) (permitting a municipal court

defendant to appear at trial "by means of a video link as approved by the

Administrative Office of the Courts").

      The record here does not explain why this trial was conducted in this

manner, or why, if there was a courtroom available in Essex County where the

parties and witnesses were all in attendance, the trial judge considered it

acceptable to conduct a trial from a distant county. We do not endorse this

practice in trials of such constitutional magnitude as termination of parental

rights.

      Reversed and remanded with directions consistent with this opinion. We

do not retain jurisdiction.




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