RECORD IMPOUNDED

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

NOT FOR PUBLICATION WITHOUT THE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.
2

A-5424-17T4

C.A.,

Minor.

_______________________________

Argued September 18, 2019 – Decided 

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/crossrespondent (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).

October 22, 2019
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A-5424-17T4

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.
4

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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, 
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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 
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A-5424-17T4

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.
7

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

resource parents, sometimes lasting up to six hours. The girls' resource parents 
9

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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 
10 A-5424-17T4

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 
11 A-5424-17T4

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.
12 A-5424-17T4

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 Chip 

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." 
13 A-5424-17T4

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 placement. 

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. 
14 A-5424-17T4

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. 
15 A-5424-17T4

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 
16 A-5424-17T4

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 
17 A-5424-17T4

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 
18 A-5424-17T4

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. 
19 A-5424-17T4

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 saw 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 
20 A-5424-17T4

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 
21 A-5424-17T4

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 weekends 

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 
22 A-5424-17T4

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 
23 A-5424-17T4

& 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. 30:4C12; 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;
24 A-5424-17T4

(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.
25 A-5424-17T4

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.
26 A-5424-17T4

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 
27 A-5424-17T4

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. 
28 A-5424-17T4

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. 
29 A-5424-17T4

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 order, 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 
30 A-5424-17T4

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 
31 A-5424-17T4

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

result of their relationship with their mother or their father.
32 A-5424-17T4

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.
33 A-5424-17T4

"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 
34 A-5424-17T4

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.