RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3838-15T4

A-4496-15T4

NEW JERSEY DIVISION OF 

CHILD PROTECTION AND 

PERMANENCY,

Plaintiff-Respondent,

v.

R.A.B. and S.C.P.,

Defendants-Appellants.

———————————————————————————————

IN THE MATTER OF THE 

GUARDIANSHIP OF L.A.C.B. 

and R.A.B. JR., minors.

————————————————————————————————

Submitted April 27, 2017 – Decided 

Before Judges Lihotz, Hoffman and Mawla.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Essex County, 

Docket No. FG-07-208-15.

Joseph R. Krakora, Public Defender, attorney 

for appellant R.A.B. (Richard Foster, 

Assistant Deputy Public Defender, on the 

briefs).

NOT FOR PUBLICATION WITHOUT THE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.

June 2, 2017
2 A-3838-15T4

Joseph R. Krakora, Public Defender, attorney 

for appellant S.C.P. (Mark E. Kleiman, 

Designated Counsel, on the briefs).

 

Christopher S. Porrino, Attorney General, 

attorney for respondent (Andrea M. Silkowitz, 

Assistant Attorney General, of counsel; Mary 

L. Harpster, Deputy Attorney General, on the 

brief).

Joseph R. Krakora, Public Defender, Law 

Guardian attorney for minors (Rachel E. 

Seidman, Assistant Deputy Public Defender, on 

the brief).

PER CURIAM

Defendants R.A.B. (Roger) and S.C.P. (Sally) appeal from the 

Family Part's April 26, 2016 guardianship judgment terminating 

their parental rights to L.A.C.B. (Lauren) and R.A.B., Jr. 

(Raymond).

1 In 2004, Roger pled guilty to a single count of sexual 

assault, N.J.S.A. 2C:14-2(b), after he admitted to sexually 

assaulting his minor cousin hundreds of times. In 2011, the 

Chancery Division appointed a guardian for Sally because she 

"adaptively functions at the level of a [nine-year-seven-month]

old individual." When the Division of Child Protection and 

Permanency (Division) evaluated Sally, it found she lacked the 

psychological capacity to care for her children independently, 

even with additional training and therapy; in addition, she 

insisted her children were safe around Roger because she refused

 

1 We use pseudonyms to protect the parties' privacy and for ease 

of reference.
3 A-3838-15T4

to believe he ever sexually assaulted his cousin. Sally married 

Roger after the Division obtained custody of the children but 

before the trial court entered the guardianship judgment under 

review.

On appeal, defendants individually argue the trial judge 

erred in finding the Division satisfied the four prongs of the 

best interests standard for termination of parental rights. 

Following our review of the record, we reject these arguments and 

affirm.

I.

We discern the following facts from the record. Roger was 

ten years old when his female cousin was born on December 5, 1993. 

After his 2003 arrest, Roger admitted to sexually assaulting the 

cousin when she was as young as two years old. He continued to 

sexually assault her until at least December 24, 2001, when he was 

eighteen years old, and she was eight. He admitted he sexually 

assaulted her "a couple hundred times."

In April 2004, Roger pled guilty to one count of seconddegree sexual assault, N.J.S.A. 2C:14-2(b), and received a threeyear prison term. The court also sentenced him to community 

supervision for life, which required him to refrain from initiating 

or attempting to initiate, establish, or maintain contact with any 
4 A-3838-15T4

minor. The community supervision also required Roger to refrain 

from residing with any minor without his parole officer's approval.

Prior to sentencing, psychologist Jeffrey C. Singer, Ph.D., 

examined Roger. Testing showed Roger has an I.Q. of seventy, 

which corresponds to the second percentile. Dr. Singer noted, 

"This quotient is associated with the 'Poor', or 'Borderline', 

range of intellectual functioning." Roger "maintained his 

innocence despite having pled guilty, under oath, calling into 

question his understanding of his guilty plea." Dr. Singer 

nevertheless found "insufficient psychological evidence generated 

in the present evaluation to support a finding of sexual 

compulsivity. Therefore, [Roger] does not appear eligible for 

sentencing under the purview of the New Jersey Sex Offender Act."

In 2004, Virginia's Juvenile and Domestic Relations District 

Court terminated Roger's parental rights of his daughter with 

another woman. Virginia's Court of Appeals upheld the termination.

In January 2011, the Chancery Division ordered and adjudged 

Sally as "an incapacitated person and . . . unfit and unable to 

govern herself and manage her affairs with respect to medical 

decisions that require informed consent, legal matters, 

residential decisions, vocational decisions and educational 

decisions but [Sally] shall be permitted to make socialization 
5 A-3838-15T4

decisions independently." The court appointed the Bureau of 

Guardianship Services as "guardian of the person of [Sally]."

The court relied on the expertise of psychologist Nicole J. 

Livingston, Ph.D., to support its order. In her February 20, 2009 

report, Dr. Livingston concluded Sally "functions in the 

moderately retarded range," "reads at the second grade level, and 

overall adaptively functions at the level of a [nine-year-sevenmonth] old individual." Dr. Livingston therefore concluded Sally 

"is able to perform some activities of daily living without 

assistance, yet she lacks the ability to understand a legal 

contract, budget money, travel independently, make change 

independently, or provide medical informed consent."

In early September 2014, a Newark Beth Israel Medical Center 

social worker reported to the Division that Sally had given birth 

to Lauren. A Division investigator determined Roger was Lauren's 

father and went to the hospital to interview Roger and Sally. 

Roger explained the couple intended to go to his mother's house 

after the hospital discharged Sally and Lauren. The Division put 

Lauren on "social hold," preventing the hospital from discharging 

Lauren to her parents, because the Division needed to complete 

further assessments of both Roger and Sally.

Three days later, the Division met with Roger, Sally, Roger's 

mother, and two other family members. Roger's mother and another 
6 A-3838-15T4

family member offered to care for Lauren, but background checks 

showed the Division had substantiated them for physical abuse, so 

it did not accept their offers. Roger's background check showed 

his conviction for sexually assaulting his cousin, and its 

consequent restriction on residing with minors. When the 

investigator called the Division of Developmental Disabilities, 

she learned "a past psychological evaluation . . . determined that 

[Sally] is unable to parent independently."

The Division concluded Lauren would "not be safe while in the 

care of" Roger and Sally. It "established" Roger's and Sally's

abuse or neglect of Lauren, and the Chancery Division granted it 

care, custody, and supervision of Lauren on October 1, 2014. The 

court granted Sally supervised visitation. The court denied Roger 

visitation because of his sexual assault conviction, but informed 

him he could obtain visitation if he proved it was in Lauren's 

best interest, pursuant to N.J.S.A. 9:2-4.1(a). The Division 

placed Lauren in one of its resource homes.

In December 2014, psychologist Alison Strasser Winston, 

Ph.D., evaluated Sally "for . . . her parenting capacity." Dr. 

Winston concluded Sally "has significant cognitive deficits [that] 

would interfere with her ability to provide [Lauren] with 

appropriate care, supervision[,] and protections, and . . . she 

is either minimizing or demonstrates no insight into the extent 
7 A-3838-15T4

or impact of her cognitive limitations." "It is extremely 

concerning that [Sally] has remained in a prolonged relationship 

with a convicted sexual offender, and . . . she has indicated that 

she has no qualms of leaving her infant daughter alone in [Roger's] 

care in the event that [Lauren] returned to her care." "Although 

[Sally] may benefit from addressing her poor judgment in the 

context of psychotherapy, her cognitive deficits appear to be so 

extensive that she would not be able to make any substantive 

improvements in this domain within a time frame that would meet 

her daughter's need for permanency."

Dr. Winston also found Sally "appears incapable of 

independently caring for a child without significant support from 

others." Sally "appears to have unrealistic expectations about 

the requirements of childcare, and also appears to be 

overestimating her cognitive abilities and her ability to meet the 

demands of raising a child." She "would benefit from completing 

parenting classes to provide her with more accurate and 

comprehensive knowledge of child development and to enhance her 

arsenal of effective disciplinary strategies in order to reduce 

her level of risk to her daughter." Dr. Winston nevertheless 

concluded, "[I]n light of her significant cognitive limitations, 

[she] is unlikely to retain any of the materials that would be 
8 A-3838-15T4

presented for a sustained period of time, and would not reduce her 

level of risk to [Lauren] to any substantive degree."

Dr. Winston ultimately concluded, "[W]ithin a reasonable 

degree of psychological certainty, [Sally] is currently incapable 

of providing her daughter with a safe and stable environment at 

the present time, nor is there any indication that she will be 

able to do so within the foreseeable future." Dr. Winston 

therefore recommended "other permanency planning for [Lauren] 

besides reunification with her birth parents."

On January 7, 2015, the Chancery Division conducted a fact 

finding trial regarding the Division's claim that Roger abused or 

neglected Lauren. The court found Roger knew his sexual assault 

conviction prevented him from having custody of Lauren, and he 

also knew Sally was incapable of properly caring for her. Because 

he failed to make other plans for her care, the court concluded 

Roger put her at imminent risk, constituting abuse or neglect. 

The same day, the court relieved the Division of its obligation 

to provide reasonable efforts to reunify Lauren with Roger because 

the Virginia court had previously involuntarily terminated his 

parental rights to his older daughter. See N.J.S.A. 30:4C-11.3(c).

On January 14, 2015, Lauren began living with her foster

parent, who is committed to adopting her. On January 29, 2015, 

the Chancery Division accepted the Division's permanency plan of 
9 A-3838-15T4

termination of parental rights followed by adoption. On March 10, 

2015, the Division filed a complaint for guardianship of Lauren.

One month before the Division filed its complaint, Sally 

began a parent education program. After attending eight group 

sessions and one individual session, Sally completed the parent 

education program in May 2015.

Sally gave birth to Raymond in July 2015. The Division 

learned of Raymond's birth the next day. Sally initially denied 

Roger was Raymond's father, but eventually admitted the fact. The 

court awarded the Division custody of Raymond on July 23, 2015. 

As with Lauren, the court denied Roger visitation with Raymond and 

relieved the Division of its obligation to provide reasonable 

efforts to reunify Roger with Raymond.

The Division placed Raymond in a resource home willing to 

adopt him. In August 2015, the Division added Raymond to Sally's 

visits with Lauren. The Division contacted the family four times 

to arrange a family team meeting, but they refused each time.

On September 23, 2015, the Chancery Division approved the 

Division's plan to terminate Roger's and Sally's parental rights 

to Raymond. The Division amended its guardianship complaint to 

include Raymond on October 27, 2015. By January 19, 2016, Sally 

had missed three consecutive visits with Lauren and Raymond, so 

the visitation program terminated her participation.
10 A-3838-15T4

On January 26, 2016, Sally confirmed she had recently married 

Roger. The same day, the court ordered Roger and Sally to undergo 

evaluations. The court had previously ordered them to undergo 

evaluations on October 28 and December 17, 2015. On February 4, 

2016, Dr. Winston completed a bonding evaluation between Sally and 

her two children. Dr. Winston found Lauren and Raymond had an 

"insecure emotional attachment" to Sally. During the evaluation, 

Sally "interacted to a somewhat minimal extent with her children. 

She infrequently spoke to the children, and her statements to them 

consisted of questions that the children could not answer, playing 

'Peek-A-Boo,' babbling, and cooing with them." The children "did 

not become distressed when [Sally] was briefly asked to leave the 

room." The children appeared as comfortable with Dr. Winston as 

with Sally, and they did "not appear to view [Sally] as a primary 

provider of their needs for nurturance, guidance, safety, and 

protection."

Dr. Winston also individually evaluated Sally. She found 

Sally's cognitive limitations "would significantly impair her 

ability to safely parent her children," noting she "demonstrates 

a significant lack of knowledge regarding issues pertaining to 

child development, appropriate care of children, relevant health 

and safety issues, and parenting skills." Although Sally "is 

clearly incapable of independently parenting her children, she 
11 A-3838-15T4

demonstrates no insight into her parental incapacity;" her

"cognitive limitations have clearly impacted on her judgment as 

she is unable to accurately ascertain which individuals could pose 

a risk of harm to her young children and would consequently place 

them at a significant risk if they were returned to her care." 

Dr. Winston specifically noted Sally's belief Roger never sexually 

assaulted his cousin.

Dr. Winston also evaluated Roger on February 4, 2016. She

stated Roger continued to deny he sexually assaulted his cousin,

and found Roger "lacks empathy and reverses parent-child roles." 

She further noted, "He may be at elevated risk of engaging in 

physically abusive behavior towards his children." Roger also 

"expressed the belief that [Sally] is capable of caring for their 

two young children on her own." Dr. Winston found this belief 

"raises further concern about [Roger's] judgment and his ability 

to provide the children with a safe and stable environment." She 

also found:

It is imperative that [Roger] engage in 

individual psychotherapy with a clinician 

skilled in working with individuals accused 

of engaging in sexually-offending behavior to 

address his history of childhood sexual abuse, 

the allegation that he had molested his 

cousin, and the impact of these factors on his 

ability to provide his children with a safe 

and stable environment. It should be noted 

that [Roger] appears to have longstanding 

issues which have never been addressed in a 

therapeutic context and will take a prolonged 
12 A-3838-15T4

period of time to adequately address. It is 

extremely unlikely that his compliance with 

psychotherapy would result in meaningful 

therapeutic progress within an appropriate 

time frame to meet his children's need for 

permanency.

Dr. Winston therefore recommended the Division and the court 

view both Sally and Roger

as having failed to achieve permanency on 

behalf of their children . . . . Neither 

parent is currently capable of providing a 

safe and stable environment for their 

children, nor is there any indication that 

either parent might be able to provide the 

children with a safe and stable environment 

in the foreseeable future. Moreover, neither 

of the children has a strong and secure 

emotional attachment to their biological 

parents.

Dr. Winston consequently recommended the termination of 

defendants' parental rights, so the children could be adopted.

On March 3, 2016, Dr. Winston evaluated Lauren's resource 

parent. Dr. Winston noted Lauren had lived with the resource 

parent since January 2015 and now views the resource parent as 

"her psychological parent." The resource parent "has expressed 

commitment to adopting [Lauren] and is able to provide the child 

with a nurturing, safe[,] and stable environment, allowing her to 

develop a sense of permanency." "Findings from the assessment of 

attachment indicate that [Lauren] has a strong and secure emotional 

attachment to her resource parent, who has been her primary 
13 A-3838-15T4

caregiver for the past [fourteen] months." Dr. Winston ultimately 

concluded:

In light of the facts that [Lauren] is 

currently in a safe and stable environment and 

has a strong attachment to [her resource 

parent], it is [my] opinion . . ., within a 

reasonable degree of psychological certainty, 

that it would be in [Lauren's] best interests 

for the [c]ourt to proceed with termination 

of [Roger's and Sally's] parental rights 

followed by adopted of [Lauren] by [her 

resource parent].

At a pretrial hearing on March 24, 2016, two weeks before the 

the guardianship trial, Roger's counsel informed the court that 

Roger had missed the July 2015 appointment for his evaluation with 

a defense expert for the termination proceeding. The court said 

it would allow the Division to present its case as scheduled, and 

Roger could present his expert when the Division presented its 

plans for adoption on April 26, 2016.

On April 6, 7, and 26, 2016, the court conducted the trial. 

On the second day of trial, Roger's counsel told the court that 

an expert would evaluate Roger on April 12, 2016. Over the three 

trial days, the Division presented three witnesses: Dr. Winston, 

a Division caseworker, and a Division supervisor. The court found 

them all credible. Defendants did not testify, present experts, 

or introduce any documentary evidence into the record. Notably, 

Roger declined to present any expert testimony. The Law Guardian 

for the children supported terminating the parental rights of each 
14 A-3838-15T4

parent. On the last day of trial, the court issued its oral 

decision terminating the parental rights of both defendants. This 

appeal followed.

II.

Our review of the Family Part 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). We will 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). "[B]ecause of the family courts' special 

jurisdiction and expertise in family matters, appellate courts 

should accord deference to family court factfinding." N.J. Div. 

of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) 

(quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). 

However, we should not grant deference to the Family Part if 

the judge's findings "went 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). The trial judge's legal conclusions, 

and the application of those conclusions to the facts, are subject 

to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of 

Manalapan, 140 N.J. 366, 378 (1995).
15 A-3838-15T4

Parents have a fundamental right to raise their biological 

children. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 

(1999); see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct.

1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982) (stating that parents 

have a liberty interest in raising their children). However, 

these rights are not absolute; the State has a responsibility to 

protect the welfare of children, which is achieved by the "best 

interests of the child standard." K.H.O., supra, 161 N.J. at 347. 

This standard is codified at N.J.S.A. 30:4C-15.1(a) and requires 

the State to establish each of the following four elements by 

clear and convincing evidence before parental rights may be 

severed: 

(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;

(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
16 A-3838-15T4

(4) Termination of parental rights will not 

do more harm than good.

These four prongs "relate to and overlap with one another to 

provide a comprehensive standard that identifies a child's best 

interests." K.H.O., supra, 161 N.J. at 348. The considerations 

involved are fact-sensitive and require particularized evidence 

addressing the specific circumstances present in each case. N.J. 

Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010). 

The first prong of the best interest standard requires the 

harm shown by the parental relationship "must be one that threatens 

the child's health and will likely have continuing deleterious 

effects on the child." K.H.O., supra, 161 N.J. at 352. This 

prong may be triggered by an "accumulation of harms over time." 

N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 

(2004). Generally, the proofs "focus on past abuse and neglect 

and on the likelihood of it continuing." N.J. Div. of Youth & 

Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.) 

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

certif. denied, 192 N.J. 68 (2007). The child's harm may also 

result from the parents' withdrawal of care, nurturing, and 

solicitude for an extended period of time, In re Guardianship of 

D.M.H., 161 N.J. 365, 379 (1999), or if the parents are unable to 

protect and care for the child. N.J. Div. of Youth and Family 

Servs. v. A.G., 344 N.J. Super. 418, 434-35 (App. Div. 2001), 
17 A-3838-15T4

certif. denied, 171 N.J. 44 (2002). Furthermore, "[c]ourts need 

not wait to act[,]" with respect to termination of parental rights, 

"until [the] child is actually irreparably impaired by parental 

inattention or neglect." D.M.H., supra, 161 N.J. at 383.

The second prong of the best-interest test relates to parental 

unfitness. K.H.O., supra, 161 N.J. at 352. It requires the State 

demonstrate the parent is "'unwilling or unable to eliminate the 

harm' that has endangered the child's health and development," or 

the parent "has failed to provide a 'safe and stable home for the 

child' and a 'delay in permanent placement' will further harm the 

child." Ibid. (quoting N.J.S.A. 30:4C-15.1(a)(2)). The trial 

court is required to determine whether it is "reasonably 

foreseeable that the parents can cease to inflict harm upon the 

children entrusted to their care." N.J. Div. of Youth & Family 

Servs. v. A.W., 103 N.J. 591, 607 (1986). 

Prong three of the best interests test contains two parts. 

The first part requires the Division show it made "reasonable 

efforts to provide services to help the parents correct the 

circumstances that led to the child's placement outside the home." 

M.M., supra, 189 N.J. at 281. These efforts should focus on 

reunification of the family. K.H.O., supra, 161 N.J. at 354. 

"Reasonable efforts" under the statue include: 
18 A-3838-15T4

(1) consultation and cooperation with the 

parent in developing a plan for appropriate 

services;

(2) providing services that have been agreed 

upon, to the family, in order to further the 

goal of family reunification;

(3) informing the parent at appropriate 

intervals of the child's progress, 

development, and health; and

(4) facilitating appropriate visitation.

[N.J.S.A. 30:4C-15.1(c).]

 

Whether the Division acted appropriately must be decided "with 

reference to the circumstances of the individual case before the 

court, including the parent's active participation in the 

reunification effort." D.M.H., supra, 161 N.J. at 390.

To satisfy the fourth prong, the Division must prove by clear 

and convincing evidence that "[t]ermination of parental rights 

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

court must determine "whether a child's interest will best be 

served by completely terminating the child's relationship with 

that parent." E.P., supra, 196 N.J. at 108. "The crux of the 

fourth statutory subpart is the child's need for a permanent and 

stable home, along with a defined parent-child relationship." N.J.

Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 226 

(2013).

N.J.S.A. 9:2-4.1(a) nevertheless states:
19 A-3838-15T4

Notwithstanding any provision of law to the 

contrary, a person convicted of sexual assault 

under [N.J.S.A.] 2C:14-2 shall not be awarded 

the custody of or visitation rights to any 

minor child, including a minor child who was 

born as a result of or was the victim of the 

sexual assault, except upon a showing[,] by 

clear and convincing evidence[,] that it is 

in the best interest of the child for custody 

or visitation rights to be awarded.

A. Roger

Roger argues the Division failed to prove any of the prongs 

of the best-interest test because he did not harm Lauren or Raymond 

when he failed to obtain custody of them pursuant to N.J.S.A. 9:2-

4.1(a). We disagree.

Roger first asserts his case is readily distinguishable from 

D.M.H., supra, 161 N.J. at 379, in which our Supreme Court held, 

"A parent's withdrawal of . . . solicitude, nurture, and care for 

an extended period of time is in itself a harm that endangers the 

health and development of the child." In D.M.H., the father 

refused to acknowledge paternity or request custody while his 

child lived with her homeless mother, who neglected her and abused 

drugs. Id. at 379-80. The father also declined to protest when 

the Division placed another of his children in foster care. Id.

at 380. "Outside of occasional visits, [the father] never provided 

[his child] with any paternal care, nurture, or support." Ibid.

Contrary to Roger's argument, his inaction was similar to the 

father's in D.M.H. He knew of Sally's pregnancy, and he knew the 
20 A-3838-15T4

restrictions on his contact with minors. Nevertheless, he never 

made any serious effort to obtain custody of either child, by 

"showing[,] by clear and convincing evidence[,] that it is in the 

best interest of the child for custody or visitation rights to be 

awarded." N.J.S.A. 9:2-4.1(a). Moreover, the trial record is 

devoid of any evidence he would have succeeded. The trial court 

allowed him to undergo an evaluation to present a defense of his 

parental rights, but he declined to attend the first evaluation, 

and the record does not reflect he attended the second appointment.

Roger now argues he never properly requested a hearing because 

his counsel was unconstitutionally ineffective. To establish 

ineffective assistance of counsel, a defendant must satisfy the 

two-pronged test enunciated by the United States Supreme Court in 

the companion cases of Strickland v. Washington, 466 U.S. 668, 104 

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and United States v. Cronic, 

466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); see also

State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's twopronged test). To establish a prima facie case of ineffective 

assistance of counsel, a defendant must prove:

First, . . . counsel's performance was 

deficient. This requires showing that counsel 

made errors so serious that counsel was not 

functioning as the "counsel" guaranteed the 

defendant by the Sixth Amendment. Second, the 

defendant must show that the deficient 

performance prejudiced the defense. This 

requires showing that counsel's errors were 
21 A-3838-15T4

so serious as to deprive the defendant of a 

fair trial, a trial whose result is reliable.

[Strickland, supra, 466 U.S. at 687, 104 S. 

Ct. at 2064, 80 L. Ed. 2d at 693.]

These standards have been applied to guardianship matters. N.J. 

Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 307-08 (2007).

Roger had two attorneys during this case. Roger argues the 

first was ineffective because the attorney never asked the court 

for a hearing, pursuant to N.J.S.A. 9:2-4.1(a). Roger states his 

first attorney failed to obtain the hearing because the attorney 

was preoccupied with a federal criminal trial that could last two 

to four months. His first attorney, however, stopped representing 

him once the federal criminal trial began, and his second attorney 

took over. Roger argues his second attorney did not understand 

N.J.S.A. 9:2-4.1(a) because she said, "[A]s far as parole was 

concerned my client could have contact with children if he was 

supervised." He also notes his second attorney asked the Division 

caseworker whether the Division ever scheduled a best interest

evaluation for Roger.

We are not convinced Roger received ineffective assistance 

of counsel. His first attorney did not request a hearing pursuant 

to N.J.S.A. 9:2-4.1(a), because Roger had not undergone an 

evaluation to support a court order granting him custody of his 

children. His first attorney scheduled an evaluation for him on 
22 A-3838-15T4

July 27, 2015, but Roger failed to attend the appointment. His 

second attorney scheduled another evaluation for him on April 12, 

2016. The record does not show whether Roger went to this 

evaluation because his second attorney did not introduce a report 

or present the expert at trial. Most likely, either Roger did not 

attend the evaluation, or the evaluation did not support granting 

him custody or visitation. Both attorneys declined to ask for a

hearing seeking custody or visitation before they had an expert 

to support the application. Neither attorney "made errors so 

serious" that they were "not functioning as the 'counsel' 

guaranteed by the Sixth Amendment." Strickland, supra, 466 U.S.

at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also B.R., 

supra, 192 N.J. at 307-08.

Roger next argues, "Dr. Winston was not an expert in sexual 

offenders, and it was improper for her to render an opinion as to 

the import of [Roger's] denials of guilt, as well as a conclusion 

that the children would be at risk of sexual abuse if reunited 

with their parents." The admissibility of expert testimony is 

committed to the sound discretion of the trial court. Townsend

v. Pierre, 221 N.J. 36, 52 (2015). A trial court's grant or denial 

of a motion to preclude expert testimony is entitled to deference 

on appellate review. Ibid. The New Jersey Supreme Court has 

instructed us to "apply [a] deferential approach to a trial court's 
23 A-3838-15T4

decision to admit expert testimony, reviewing it against an abuse 

of discretion standard." Id. at 53 (alteration in original) 

(quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 

371-72 (2011)).

N.J.R.E. 702 and 703 frame our analysis for determining the 

admissibility of expert testimony. N.J.R.E. 702 identifies when 

expert testimony is permissible and requires the experts to be 

qualified in their respective fields. N.J.R.E. 703 addresses the 

foundation for expert testimony. Expert opinions must "be grounded 

in 'facts or data derived from (1) the expert's personal 

observations, or (2) evidence admitted at the trial, or (3) data 

relied upon by the expert which is not necessarily admissible in 

evidence but which is the type of data normally relied upon by 

experts.'" Townsend, supra, 221 N.J. at 53 (quoting Polzo v. 

Cnty. of Essex, 196 N.J. 569, 583 (2008)).

"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . 

which forbids the admission into evidence of an expert's 

conclusions that are not supported by factual evidence or other 

data.'" Id. at 53-54 (alteration in original) (quoting Polzo, 

supra, 196 N.J. at 583). Therefore, an expert is required to 

"'give the why and wherefore' that supports the opinion, 'rather 

than a mere conclusion.'" Id. at 54 (quoting Borough of Saddle 

River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). The net 
24 A-3838-15T4

opinion rule directs "that experts 'be able to identify the factual 

bases for their conclusions, explain their methodology, and 

demonstrate that both the factual bases and the methodology are 

reliable.'" Id. at 55 (quoting Landrigan v. Celotex Corp., 127 

N.J. 404, 417 (1992)). In short, the net opinion rule is "a 

prohibition against speculative testimony." Harte v. Hand, 433 

N.J. Super. 457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 

301 N.J. Super. 563, 580 (App. Div. 1997), certif. denied, 154 

N.J. 607 (1998)).

Dr. Winston's curriculum vitae states the New Jersey Child 

Abuse Training Institute granted her an "Advanced Studies in Child 

Maltreatment Certificate with a specialization in Child Sexual 

Abuse." Fordham University granted her a Ph.D. in clinical 

psychology, and she is a licensed psychologist in New Jersey and 

New York. Dr. Winston met with Roger and was qualified to opine 

on the psychological import of Roger's denial of guilt and on 

whether he posed a risk to his children. See N.J.R.E. 702, 703.

Lastly, Roger argues the State of Virginia terminated his 

parental rights under a statute that did not require it to provide 

him with reasonable services, so the trial court should not have 

relieved the Division of its obligation to provide reasonable 

efforts to reunify him with his children. N.J.S.A. 30:4C-11.3(c)

states:
25 A-3838-15T4

In any case in which the Division of Child 

Protection and Permanency accepts a child in 

care or custody, including placement, the 

division shall not be required to provide 

reasonable efforts to reunify the child with 

a parent if a court of competent jurisdiction 

has determined that . . . [t]he rights of the 

parent to another of the parent’s children 

have been involuntarily terminated.

N.J.S.A. 30:4C-11.3(c) does not limit its application to parents 

who had their parental rights previously terminated in accordance 

with New Jersey law or public policy, and we decline to read this 

qualification into the statute. For this reason, we also reject 

Roger's argument that his counsel was ineffective for failing to 

raise this argument at trial.

Although ultimately not essential to our decision, we 

previously granted Roger's motion to supplement the record with a 

psychologist's December 2, 2016 report finding him unlikely to 

"commit another sexual offense." Obviously, this report was not 

before the trial court. Moreover, Dr. Winston's conclusions did 

not turn on whether Roger had a likelihood of recidivism as a 

sexual offender. The report also fails to show Lauren's or 

Raymond's best interests require "custody or visitation to be 

awarded." N.J.S.A. 9:2-4.1(a).2

 

2 The Division also filed motions to supplement the record with 

an additional report of its own and a Family Part order regarding 

Roger and Sally's third child. We deny these motions because the 

additional report and court order are unnecessary to our 
26 A-3838-15T4

B. Sally

A court's decision to terminate a parent's rights must rest 

on the child's best interest and the child's need for protection 

and permanency; the court's decision must not be skewed by the 

sympathy for the blamelessness of a parent facing circumstances 

he or she has not caused. A.G., supra, 344 N.J. Super. at 438-

39. "[T]o allow the provisions of the [LAD] and ADA to constitute 

a defense to a termination proceeding would improperly elevate the 

rights of the parent above those of the child." Id. at 442. 

"Reliance upon the LAD [and the ADA] would change the focus of the 

termination case from the best interests of the child to the rights 

of the parent." Id. at 441.

Sally first argues, "In the case at bar, the trial court 

essentially found that [she] 'harmed' both children by virtue of 

her being deemed incapacitated in 2011; thus, the court believed 

[she] was incapable of caring for herself or her children." The 

record does not support this contention. The Division individually 

and separately evaluated Sally twice: once regarding Lauren, and 

again regarding both Lauren and Raymond. Both times, Dr. Winston 

found Sally psychologically incapable of independently caring for 

children while refusing to recognize her cognitive limitations. 

 

determination of this case. See Liberty Surplus Ins. Corp. v. 

Nowell Amoroso, P.A., 189 N.J. 436, 452-53 (2007).
27 A-3838-15T4

Further, she insisted she would leave her children with Roger, in 

spite of his prior admission to sexually assaulting his cousin 

hundreds of times. Sally's mental disability, her refusal to 

acknowledge her limitations, and her obstinate insistence on 

Roger's innocence, all "threaten[ed]" her children's health and 

would "likely have continuing deleterious effects on" them. See

K.H.O., supra, 161 N.J. at 352.

Sally next argues, "[T]he court disregarded evidence . . . 

demonstrating [her] desire and potential for developing the skills 

necessary to care for her children with proper support . . . ." 

Again, the record does not support this contention. Dr. Winston 

testified Sally "remains incapable of providing a safe and stable

environment for her children[,] [a]nd . . . she would not be able 

to remediate those concerns within a time frame that would meet 

the children's need for permanency." The trial court found Dr. 

Winston credible, and Sally did not present any evidence to the 

contrary.

Sally also contends the Division "failed to provide [her] 

with an individualized assessment or reasonable accommodations for 

services under the ADA in light of her cognitive limitations, 

which have necessitated the appointment of a legal guardian to 

assist her with certain decisions." She cites PGA Tour Inc. v. 

Martin, 532 U.S. 661, 690, 121 S. Ct. 1879, 1897, 149 L. Ed. 2d 
28 A-3838-15T4

904, 928 (2001), for the proposition that the ADA requires "the 

need of a disabled person be evaluated on an individual basis." 

Although this court has explicitly rejected the ADA or LAD as

defenses to the termination of a parent's rights, A.G., supra, 344 

N.J. Super. at 442, the record shows the Division individually 

evaluated Sally's ability to parent her children twice. As already 

noted, the Division found her unfit and beyond its help. We 

therefore reject Sally's last argument that "the court's 

determination on the fourth prong was 'wide of the mark' and should 

be reversed in light of the Division's failure to offer appropriate 

remedial services."

Any arguments not specifically addressed in this opinion lack 

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.