RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2593-17T4

IN THE MATTER OF THE

ADOPTION OF A CHILD 

BY C.J.

_______________________

Submitted March 18, 2020 – Remanded

Argued October 1, 2020 – Decided 

Before Judges Fuentes, Whipple and Firko. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Gloucester County, 

Docket No. FA-08-0012-17. 

Tracy Julian argued the cause for appellant G.D. 

(Pashman Stein Walder Hayden, PC, attorneys; Tracy 

Julian, of counsel; Linda Torosian and Timothy 

Malone, on the briefs).

Lynn M. Castillo, attorney for respondent C.J.

The opinion of the court was delivered by

WHIPPLE, J.A.D.

October 28, 2020

April 28, 2020

APPROVED FOR PUBLICATION

October 28, 2020

APPELLATE DIVISION
A-2593-17T4

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Appellant, G.D. (Gloria),

1

appeals the January 5, 2018, judgment entered 

by the Chancery Division, Family Part terminating her parental rights to her 

daughter, G.J. (Gail), and granting adoption to C.J. (Cathy), Gail's stepmother,

who is married to Gail's father, P.J. (Paul). We reverse the decision to 

terminate Gloria's parental rights and vacate the judgment of adoption.

Gail was born in January 2008. Her biological parents never married. 

Gloria was the parent of primary residence after the child's birth, while Paul 

had parenting time every other weekend.2 And although early child support 

orders are not included, we deduce from the other orders in the record that 

Gloria sought child support from Paul.

According to records of the Division of Child Protection and 

Permanency (Division), it became involved with this family in July 2007 when 

it substantiated Gloria for neglecting a different child prior to Gail's birth.

Cathy first met and began caring for Gail while she was with Paul, 

around June 2008, when Gail was five months old. In July 2008, Paul filed an 

Order to Show Cause seeking emergency custody of Gail. He alleged that 

1

 Due to the confidential nature of records pertaining to the placement of a 

child, we use pseudonyms in lieu of actual names. See R. 1:38-3(d)(13).

2

 The record does not reflect whether custody was arranged by the parties or 

by court order after an FD hearing.
A-2593-17T4

3

Gloria failed to meet him to take custody of the child at the conclusion of a 

parenting time visit. Paul also asserted that the Division was "involved." At 

that time, the court did not remove Gail from Gloria's care. Further, in July 

2008, the Division investigated allegations of Gloria's inadequate supervision 

of Gail but found no basis to intervene. The Division caseworker who 

investigated the matter noted that the couple is "separated and they are in the 

beginnings of a custody dispute. There is no evidence to support the 

allegations and there is documentation on the record that [Gloria] has been 

given random urine tests that have returned negative each time."

In February 2009, the Division received a referral alleging substantial 

risk of physical injury or environment injurious to the health and welfare of 

Gail. Gloria subsequently submitted diluted urine screens and was 

recommended for an intensive outpatient program.

In August 2009, Paul married Cathy, and one month later, according to 

Cathy's testimony, she and Paul contacted the Division to present photos of an 

incident involving Gail and Gloria. Those photos depicted the then one-yearold Gail on a boat, holding a beer bottle and appearing to be drinking, while

Gloria was present. Based exclusively on this incident, the Division 

substantiated Gloria for neglect.
A-2593-17T4

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Later on, in February 2011, Paul and Cathy brought Gail to a 

McDonald's to return her to Gloria following Paul's parenting time. Gloria 

was not there to pick up Gail, but Gloria's older daughter and Gloria's 

boyfriend were there. Cathy testified that she and Paul gave the child to 

Gloria's boyfriend, called the police, and then followed Gloria's boyfriend 

home. Cathy testified that when she confronted the boyfriend at the house, he 

"had alcohol on his breath," so she took Gail back to her and Paul's house. 

According to Division records, Gloria filed an emergency motion with the 

court after Gail was not returned to her, and Paul filed an emergency motion to 

modify the custody arrangements.

In court on February 28, 2011, Gloria and Paul were both drug-tested; 

Gloria tested positive for cocaine, while Paul tested positive for 

methamphetamines. He then underwent another drug screen the same day, 

which was negative for all substances. Afterward, the Division records reflect 

that a safety plan was implemented, and Paul was permitted to have contact 

with Gail supervised by Cathy until the arrangements were lifted by a Division 

worker approximately two weeks later. Eventually, the court granted Paul 

residential custody of Gail, where she remains today. Additionally, Gloria 

agreed to participate in a substance abuse evaluation and received courtordered unsupervised visitation with Gail.
A-2593-17T4

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In September 2011, the court ordered parenting time for Gloria on 

Wednesdays from 6:00–8:00 p.m. and every other Saturday from 12:00–3:00

p.m. In June 2012, the court denied Paul's application for supervision of 

Gloria's parenting time. The court noted in the June order that Gloria was 

arrested on a child support warrant that was lifted before she was released. 

She also tested positive for benzodiazepine and opiates, which were her

prescribed medications. As a precautionary measure, the court ordered her not 

to drive while Gail was in the car.

Next, in March 2013, during a Division investigation of Gloria's son and 

his girlfriend, an allegation surfaced that Gloria was using heroin. A ten-day 

safety plan was put in place by the Division, which required Gloria's parenting 

time to be supervised. Gloria submitted to treatment, which she completed in 

August 2013, and the Division closed the case. 

A December 23, 2014, court order states the following:

Dad present with counsel[.] Mom present. Mom's 

application for a reduction in child support is 

withdrawn by [M]om today. Both parties[']

applications to modify parenting time is granted.

Mom's parenting time shall be modified to every other 

Saturday, [12:00–6:00 p.m.]. Pick up and drop off 

shall take place at the Monroe Twp[.] Police 

Department. The Wednesday afternoon/evening visit 

is now eliminated. Mom shall submit to a hair follicle 

test within [ten] days. Dad's application for an 

increase in child support is denied; however, the 
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[c]ourt acknowledges that Dad incurs fees for the 

child's daycare ($100/[week]) and medical coverage 

($140/month). Parties are to share the fees 50%/50%,

payable through probation. The cost is hereby added 

to the child support obligation and the obligation is 

modified to $110/[week]. . . . Request for counsel 

fees is granted. Mom is ordered to reimburse [father's 

attorney] a total of $500 within [thirty] days from 

today's order.

According to a subsequent May 28, 2015, court order, Gloria was found 

$529.57 in arrears in child support. On that day the court ordered:

Mom present. Dad present with counsel[.] Dad's 

application seeking strict enforcement, including two 

missed payment stipulation or a bench warrant shall 

issue is granted. His application seeking to suspend 

[M]om's parenting time is granted. Mom is ordered to 

complete a psychological evaluation by a licensed 

psychologist who specializes in child welfare issues. 

The psychologist shall be provided with the [Division] 

records and court orders as necessary to fully 

understand the dynamic of the family. Dad's 

application seeking reimbursement for counsel fees 

for today's filing is granted and [M]om is ordered to 

pay the total fees of $500 within [thirty] days. Failure 

to pay within [thirty] days will result in fees being 

reduced to judgment.

We have not been provided with a transcript of the May 28, 2015, court 

hearing. On its face, the order does not describe the factual basis for the 

court's decision to order Gloria to submit to a psychological evaluation. 

However, the record reflects an allegation arising from a February 2014 dropoff, wherein Gloria allegedly told Cathy "remember when you're kissing [Gail]
A-2593-17T4

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whose p**** she came out of" and "just remember when you're laying in your 

bed who your husband is f****** in your bed" as Gloria was "walking away 

with [Gail] who's covering her ears."

According to Cathy, after this visit, Gail told her that Gloria said "that 

her father didn't want her, that her father wanted her [mother] to go to the 

hospital . . . and have them cut her out of her belly and kill her because he 

didn't want her." A few days after this, Gail's school guidance counselor 

reported that Gail had told the counselor Gloria said "that daddy made her 

have a baby cut out of her and that he was trying to do that to her when she 

was pregnant w[ith] [Gail]." Gail was six years old at the time.

As a result of having parenting time suspended, Gloria's last physical 

contact with Gail was in April 2015. Cathy filed a complaint for adoption on 

October 13, 2016, and Gloria filed an objection. Regarding Gloria, the 

complaint alleged that she had not seen the child since April 2015; she had a 

long history of drug and alcohol abuse; her parenting time was suspended until 

she completed a psychological evaluation; she did not provide medical support

even though her share of medical expenses are calculated into her child 

support obligations, which were in arrears; and she had a suspended driver's 

license. The complaint similarly alleged Gloria had abandoned Gail pursuant 

to N.J.S.A. 9:6-1.
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The trial court appointed a Guardian ad Litem to represent the child's 

interest in the matter on December 2, 2016. Counsel from the New Jersey 

Public Defender Office of Parental Representation was assigned to represent 

Gloria, after the court determined she was indigent. Gloria's counsel arranged 

for her to undergo a psychological evaluation to address her ability to parent 

Gail. But despite requests, the court denied Gloria any parenting time pending 

the adoption trial. Although the judge granted Gloria's application to have

Gail examined by an expert, the record lacks any explanation as to why that 

examination apparently did not happen.

In March 2017, Ronald Gruen, EdD, completed his comprehensive 

psychological evaluation, including a battery of tests, ultimately concluding 

that "[Gloria] has personality weaknesses but no significant psychopathology 

which would render her unfit to parent." Dr. Gruen reported "[Gloria] was 

convinced that [Paul] was using the courts and [the Division] to wrest custody 

of their child away from her" and "[Gloria] is not interested in taking [Gail] 

away from her father and step-mother. . . . [S]he is basically interested in 

maintaining her parental rights and securing some parenting time." He noted

"[Gloria] is capable of parenting her daughter if given the opportunity." 

In May 2017, after reviewing Division records, Dr. Gruen issued a 

supplemental report, finding that the Division never considered Gloria's 
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parenting to be deficient enough to file a Guardianship Complaint against her: 

"[i]n my opinion, review of the [Division] records does not support termination 

of [Gloria's] parental rights to her daughter, [Gail]." On July 27, 2017, 

Adoptions from the Heart issued an adoption home study report recommending 

Cathy adopt Gail. The adoption report contained embedded hearsay provided 

by Cathy, again reciting the alleged comment from Gloria to Gail that "[y]our 

father wanted to cut you out of my belly and kill you," and reported that Gail 

was treated in psychotherapy due to Gloria's comments. Adoptions from the 

Heart conducted no independent psychological evaluation of the child and 

recommended that Cathy was an appropriate caregiver for Gail.

The Guardian ad Litem also issued a comprehensive report in October 

2017, expressing various concerns about Gloria's sobriety and a concern that 

Gloria had not completed the court-ordered psychological evaluation. That 

report made no mention of Dr. Gruen's evaluative reports from March 2017 

and May 2017, and offered the legal determination that Gloria had "forsaken 

her parental duties" to Gail, asserting Gloria had not maintained a relationship 

or communicated with her daughter since May 2015. The Guardian ad Litem's 

report also based its conclusion on an unsupported assertion that Gloria had 

not provided "any form of financial support" for Gail.
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At trial, the first witness was Gail's preschool teacher, who testified 

generally that Cathy brings Gail to school and Gail is a good student. Paul 

testified about his concerns regarding Gloria's history of substance abuse and

the longstanding custody dispute over Gail. He also testified regarding the 

photographs showing Gail holding a beer bottle on a boat. Cathy also testified 

about her relationship with Gail and Gail's attendance at therapy. The parties 

stipulated to the Adoptions from the Heart report and evidence from the 

Division record, exclusive of embedded hearsay. Dr. Gruen testified 

consistent with his written evaluation, and Gloria herself testified. 

On January 5, 2018, the trial court terminated Gloria's parental rights 

after finding: 

[Gloria] has not fulfilled her financial obligations for 

the care of this child. Currently according to court 

records, she owes $7,271.57 in child support arrears as 

of December 2017. [Gloria] testified on crossexamination that she is unable to work due to injury 

sustained in a car accident [ten] years ago. She has 

applied, according to her testimony, for Social 

Security disability but her claim was denied. There 

was no proof of that admission into Social Security 

application. In addition to that, [Gloria] failed to 

submit any medical evidence to substantiate her claim 

for not being able to work and support the child.

However, [Gloria] has testified that she currently 

supports herself by cleaning apartments which 

includes bending, lifting and scrubbing floors.
A-2593-17T4

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[Gloria] has not showed a continued interest in the 

child nor demonstrated a genuine effort to maintain 

communication with the child. [Gloria]'s parenting 

time was suspended on May 27th, 2015, pending a 

psychological evaluation. That was court ordered 

under FD-08-865-08 and that was dated as noted May 

27th, 2017 [sic]. [Gloria] did not complete a 

psychological evaluation until March of 2017 when 

this -- after this litigation had been enacted.

Because of that, she has had two years of parenting 

time which has been suspended. The last time 

[Gloria] saw the child according to her was April of 

2015. [Gloria] testified that she had no phone contact 

with the child, she has not sent letters, cards or gifts to 

her daughter in over two and a half years. Prior to 

[Gloria]'s visits being suspended, she had six hours of 

parenting time on Saturday every other week. That 

was from December 23rd, 2014, until visitation had 

been suspended as noted in May of 2015.

[Gloria] has not established or maintained a place of 

importance in the child's life. In the report that was 

submitted as evidence from Adoptions [f]rom the 

Heart, the report in numbers of places indicates the 

relationship or lack thereof between the child and the 

biological mother.

One important aspect that the [c]ourt found was that 

when the child was asked about her perception of her 

biological mother's feelings towards her, the child

stated, she hasn't seen me in two and a half years. She 

doesn't care about me.

Although the [c]ourt has not -- has followed the best 

interest standard under the statute, the [c]ourt also 

examined standards in N.J.S.A. 30:4C for additional 

guidance on the best interest of the child. The factors 

under Title 30 are whether the child's safety, health or 
A-2593-17T4

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development has been or will continue to be 

endangered by parental relationship, 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 that harm. A factor also 

considered under Title 30 is whether or not the

Division has made reasonable efforts. That does not 

apply in this case. And, fourth, termination of 

parental rights will not do more harm than good.

The reasonable efforts prong is not relevant in this 

case. However, the other factors as noted provide 

additional support in the [c]ourt's consideration.

The child's safety, health or development has been or 

will continue to be endangered by the parental 

relationship because there was testimony provided by 

the plaintiff that [Gail], that's the child, was upset 

after her last visit with [Gloria] because [Gloria] told 

[Gail] that her father, [Paul], wanted to essentially 

have an abortion, to cut [Gail] from [Gloria]'s

stomach. Plaintiff further testified that [Gail] reported 

the incident to her teacher and [Gail] is in therapy to 

address that trauma. The [c]ourt finds that the 

plaintiff's testimony is credible and finds [Gloria]'s 

conduct endangered the safety, health and 

development of [Gail].

In addition, on cross-examination [Gloria] denied 

making such statements to [Gail] but she also stated 

that it was possible [Gail] overheard [Gloria] talking 

to someone else and [Gloria] believed [Gail] lied 

about those statements. The [c]ourt finds that 

[Gloria]'s testimony reflects that [Gloria] would 

continue to endanger [Gail]'s safety, health and 

development.
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Pursuant to N.J.S.A. 9:3-46(a) and the aforementioned 

factors including case law, this [c]ourt finds by clear 

and convincing evidence that adoption is in the best 

interests of the child.

In concluding the preliminary hearing pursuant to 

N.J.S.A. 9:3-48(c), the [c]ourt finds . . . [Gloria]'s 

objection to this adoption has been contravened 

pursuant to N.J.S.A. 9:3-46. The child is fit for 

adoption and the plaintiff is fit to adopt the child.

A stay was granted. This appeal followed.3

Our scope of review is limited in assessing the factual findings of the 

Family Part. N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 278 

(2007). We are obliged to accord deference to the trial court's sensibilities of 

the case based upon its opportunity to see and hear the witnesses, Cesare v. 

Cesare, 154 N.J. 394, 412 (1998), and defer to the trial court's factual and 

credibility determinations. In re Adoption of a Child by J.D.S., 353 N.J. Super 

378, 394 (App. Div. 2002). Indeed, we are precluded from disturbing "the trial 

court's findings unless they are 'so manifestly unsupported by or inconsistent 

with the competent, relevant and reasonably credible evidence as to offend the 

interests of justice.'" Id. (first quoting Rova Farms Resort, Inc. v. Invs. Ins. 

3

 This is the second time this appeal has been before this court. On April 28, 

2020, we sua sponte determined Gloria's appellate counsel was ineffective and 

adjourned the disposition of this appeal for the appointment of new counsel. 

In re Adoption of a Child by C.J., 463 N.J. Super. 254 (App. Div. 2020).
A-2593-17T4

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Co. of Am., 65 N.J. 474, 484 (1974); and then citing Fagliarone v. Twp. of N. 

Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).

However, a trial court's "interpretation of the law and the consequences 

that flow from established facts are not entitled to any special deference." 

State v. Pomianik, 221 N.J. 66, 80 (2015) (quoting Manalapan Realty v. Twp. 

Comm., 140 N.J. 366, 378 (1995)). We note the burden of proof is with the 

plaintiff, not the objecting biological parent. Santosky v. Kramer, 455 U.S. 

745, 747-48 (1982).

On appeal, Gloria argues the court erred terminating her parental rights 

and granting adoption because the evidence did not support the finding she 

failed to affirmatively assume the duties of a parent. We agree.

In In re Baby M., 109 N.J. 396, 445 (1988), our Supreme Court stated: 

the mere fact that a child would be better off with one 

set of parents than with another is an insufficient basis 

for terminating the natural parent's rights . . . the 

interests of the child are not the only interests 

involved when termination issues are raised. The 

parent's rights, both constitutional and statutory have 

their own independent vitality.

Terminating parental rights implicates fundamental liberty interests that are 

protected by the United States Constitution. In re Adoption of Children by 

G.P.B., Jr., 161 N.J. 396, 404 (1999) (citing Santosky, 455 U.S. at 753).
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The Adoption Act, N.J.S.A. 9:3-46, contemplates two distinct types of 

adoptions: one where a child has been placed for adoption, N.J.S.A. 9:3-46(a),

and one where a child has not been placed for adoption. The two provisions 

have different time frames for the court to assess the objecting parent's 

conduct. Under N.J.S.A. 9:3-46(a), no time limit applies to assessing the 

objecting parent's behavior in the best interest of the child analysis when, like 

here, the child has not been placed for adoption. G.P.B., Jr., 161 N.J. at 411.

However, where a child is placed up for adoption, under N.J.S.A. 9:3-

46(a)(2)(c), the timeframe is fixed. Therefore, because Gail was not placed for 

adoption, there is no statutory time limit.

N.J.S.A. 9:3-46(a) permits adoption over the objection of a biological

parent under a "best interest of the child standard," and requires the court to 

consider whether the parent whose parental rights are targeted for termination

has "affirmatively assumed the duties encompassed" in being a parent. This is 

not the same "best interest" standard courts utilize when terminating parental 

rights for purposes of adoption under N.J.S.A. 30:4C-15(c), which focuses on 

four different inquiries to terminate parental rights.4 Under N.J.S.A. 9:3-46(a),

4

 Under Title 30, the "best interests" test requires the Division to show that:
A-2593-17T4

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[i]n a contest between a person who is entitled to 

notice pursuant to section 9 of P.L.1977, c.367 (C.9:3-

45) objecting to the adoption and the prospective 

adoptive parent, the standard shall be the best interest 

of the child. The best interest of a child requires that a 

parent affirmatively assume the duties encompassed 

by the role of being a parent. In determining whether 

a parent has affirmatively assumed the duties of a 

parent, the court shall consider, but is not limited to 

consideration of, the fulfillment of financial 

obligations for the birth and care of the child, 

demonstration of continued interest in the child, 

demonstration of a genuine effort to maintain 

communication with the child, and demonstration of 

(continued)

(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 foster parents would 

cause serious and enduring emotional or psychological 

harm to the child;

(3) The [D]ivision 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.

[In re Guardianship of Jordan, 336 N.J. Super. 270 

(App. Div. 2001) (citing N.J.S.A. 30:4C-15.1).] 
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the establishment and maintenance of a place of 

importance in the child's life.

The Supreme Court, in G.P.B. Jr., 161 N.J. at 404, instructed the court to 

first evaluate whether grounds for termination have been sufficiently 

established. The Court made it clear that the issue was "whether the biological 

parent has failed to fulfill his or her duties." Id. at 413; see also In re Adoption

of Children by D., 61 N.J. 89, 95 (1972).

Accordingly, the court herein based this termination, under N.J.S.A. 

9:13-46(a), on a finding that Gloria did not fulfill her financial obligations 

toward the child because of her child support arrears at the time of trial, among 

other considerations. Notably, we are troubled by the court's reliance on this 

finding because termination of parental rights has never been an authorized 

enforcement tool—even in egregious cases involving child support arrears.

To be sure, the obligation of a parent to provide support is considered to 

be independent of the parent's right to parenting time. Wagner v. Wagner, 165 

N.J. Super. 553, 556 (App. Div. 1979); see also Fiore v. Fiore, 49 N.J. Super. 

219, 225-27 (App. Div. 1958) (citing Bruguier v. Bruguier, 12 N.J. Super. 350, 

354 (Ch. Div. 1951)) (overturning an order that abated child support payments 

if mother or her family interfered with the father's visitation rights and stating 

that the "duty of a father to support his children and the right of a father to 
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visitation and overnight custody are not dependent upon or connected with 

each other"); Ryan v. Ryan, 246 N.J. Super. 376, 383-84 (Ch. Div. 1990)

(citing Fiore, 49 N.J. Super. at 227) (concluding that the court was not bound 

by an agreement whereby the father gave up his visitation rights in exchange 

for being relieved of his support obligations and stating that "[i]n the best 

interests of the child, support and the right of visitation cannot be dependent 

upon or connected with each other.").

Ordinarily, only economic sanctions or compulsive incarceration,

following due process procedural protections, are imposed upon a parent who 

violates an order respecting custody or parenting time under Rule 5:3-7(a)(2). 

Considering this bedrock principle, it would be anathema to suggest the failure 

to fulfill financial obligations for the birth and care of the child under N.J.S.A. 

9:13-46(a) can be based simply on insufficient financial resources. We hold 

such a finding requires reliable proof of intentional abandonment of financial 

obligations.

Pertinently, N.J.S.A. 9:3-46(a)'s best interest analysis requires 

consideration of whether the objecting parent assumed "the fulfillment of 

financial obligations for the birth and care of the child." And although 

abandonment of financial obligations is not the language of N.J.S.A. 9:3-46(a), 

our courts have examined abandonment of parental function in other contexts,
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such as requiring an intent or willfulness that is not evident in the present case. 

We have said before that abandonment does not mean "that the parent has 

deserted the child, or even ceased to feel any concern for [his or her]

interests." In re Estate of Fisher, 443 N.J. Super. 180, 197 (App. Div. 2015)

(first quoting Lavigne v. Family & Children's Soc'y, 11 N.J. 473, 480 (1953);

and then quoting Winans v. Luppie, 47 N.J. Eq. 302, 304 (E. & A. 1890)). We 

have defined abandonment as "conduct on the part of the parent which evinces 

a settled purpose to forego all parental duties and relinquish all parental claims 

to the child." Lavigne, 11 N.J. at 480 (quoting Winans, 47 N.J. Eq. at 304). 

We defined the term "forsaking" in the child abandonment context "as a 

permanent giving up or relinquishment of the child." State v. N.I., 349 N.J. 

Super. 299, 312 (App. Div. 2002). Our focus has always been on willful,

intentional or purposeful, as distinguished from inadvertent or accidental

conduct. For example, we said a parent can be found to have abandoned a 

child, thus losing the right to intestate succession, by "willfully forsaking" the 

child. Fisher, 443 N.J. Super. at 192. A parent's failure to fulfill financial 

obligations must therefore be intentional, evincing an intent to forgo that 

obligation. See id. at 200.

Here, the trial court found Gloria did not fulfill her financial obligation 

for Gail's care because she owed child support arrears, in the amount of 
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$7,271.57, and that she was voluntarily unemployed due to her inability to 

work, as a result of her injuries. Our review of the record indicates that

although Gloria accrued child support arrears, she actually paid child support.

Thus, the court erred when it found that Gloria did not fulfill her financial 

obligations for Gail's care. And further, the record does not support a finding 

that Gloria intentionally avoided paying child support. 

We also reject the court's conclusion that Gloria was voluntarily 

unemployed. Without explanation, the court dismissed her unrebutted 

testimony that injuries from two motor vehicle accidents have rendered her 

unable to work and that she is currently unemployed. Division records and 

prior court orders provided some support for Gloria's claim she legitimately 

used prescription medications for her pain management. But the court was 

critical of Gloria's lack of proof that she applied for Social Security benefits 

and that she did not provide medical evidence beyond her testimony regarding 

her not being able to work as she had in the past. She testified that she 

currently supports herself by cleaning apartments in exchange for housing 

from a family member.

If this had been Gloria's motion for modification of child support, 

indeed, we might agree with the trial judge's criticism. However, the United 

States Constitution requires a plaintiff to assume a specific burden of proof to 
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terminate a defendant's parental rights. For example, in Santosky, the United 

States Supreme Court warned "at a parental rights termination proceeding, a 

near-equal allocation of risk between the parents and the State is 

constitutionally intolerable." Santosky, 455 U.S. at 768. The fact that these 

are private parties does not change that. The burden, by clear and convincing 

evidence, of proving Gloria's intentional inability to pay remained with Cathy

and was not met.

The trial court also found Gloria did not show a continued interest in 

Gail, nor demonstrated a genuine effort to maintain communication with her. 

But this result was unavoidable for Gloria, as the court suspended her

parenting time on May 27, 2015, pending a psychological evaluation that she 

did not complete until March 2017. Notwithstanding a desire to do so, it was 

not Gloria's choice not to see her child, and she testified the waiting period 

was a consequence of insufficient resources. Therefore, to use the court's 

barrier as a basis to find a failure to express continued interest is 

impermissible.

Prior to the suspension, Gloria had parenting time every other Saturday 

from December 23, 2014, until May of 2015. From September 21, 2011,

through December 23, 2014, she had parenting time as per the September 16,

2011, order: every Wednesday from 6:00–8:00 p.m. and every other Saturday 
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from 12:00–3:00 p.m. Prior to September 2011, Gail resided primarily with 

Gloria. The court ignored the ongoing custody dispute with Paul and the 

motions she filed to enforce her right to exercise parenting time and requests 

for assistance of the police.

Moreover, Gail had no phone for Gloria to call directly. And Gloria 

testified she did not send letters or cards or gifts in over two years due to 

Paul's history of throwing away items she gave Gail during parenting time and 

his refusal to let Gail come to the phone when she called. The trial court also 

ignored Gloria's testimony that the reasons she had not completed the required 

$700 psychological evaluation were financial, and ignored testimony about her 

attempt to see Gail outside of her daycare center after the court's May 27, 

2015, order. Furthermore, upon completion of the psychological evaluation, 

Gloria made requests to reinstate her parenting time, which the trial court 

denied. The trial court also made no mention whatsoever of Dr. Gruen's 

testimony and expert report.

In termination of parental rights proceedings for contested private 

adoptions, trial courts should consider "whether the custodial parent has 

contributed to that inability by blocking the objecting parent's access to the 

child." G.P.B., Jr., 161 N.J. at 412. The trial court here made no factual 

findings as to whether Paul blocked Gloria's access to the child despite Gloria's 
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testimony that she believed he would. Dr. Gruen's report confirms Gloria 

believed this, and there are references throughout the record that plausibly 

supported her assertion. It was impermissibly erroneous to rely—without 

further inquiry—on the Guardian ad Litem's report that Gloria failed to 

maintain a relationship with Gail.

Based on our review of the record, the evidence does not support that 

Gloria failed to show a continued interest in Gail and failed to demonstrate a 

genuine effort to maintain communication with Gail under the clear and 

convincing standard.

We also reject the use of hearsay evidence to support the termination of 

Gloria's parental rights. In this case, the trial court erroneously made findings 

based on hearsay statements within the Adoptions from the Heart report, which 

the court found "indicates the relationship or lack thereof between the child 

and the biological mother." Specifically, the court relied on a portion of the 

adoption agency's report that stated "when the child was asked about her 

perception of her biological mother's feelings towards her, the child stated, she 

hasn't seen me in two and a half years. She doesn't care about me."

It was also error for the court to import the test from N.J.S.A. 30:4C-15

for additional guidance on the best interest of the child. And it was further

error to then make findings based upon Cathy's uncorroborated hearsay 
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testimony that Gloria told Gail that Paul essentially wanted to have an 

abortion, to cut Gail from Gloria's stomach. In particular, this Title 30

standard does not apply to a private action where a party is seeking adoption 

over parental objection.

These are certainly disturbing remarks, which is precisely why we 

require certain indicia of reliability before making a determination of 

trustworthiness. It should be emphasized that the child did not testify at trial, 

and the record includes no independent psychological evaluation of the child.

As a result of the foregoing, it was error for the trial court to find clear 

and convincing evidence to terminate Gloria's parental rights to Gail, and 

consequently, that it was in the child's best interest to grant the adoption to 

Cathy.

Reversed and vacated.