RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3788-15T4

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

H.D.C.,

Defendant-Appellant,

and

R.B.,

Defendant.

________________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF T.R.C., a minor.

________________________________________

Submitted May 2, 2017 – Decided

Before Judges Messano and Grall.

On appeal from the Superior Court of New 

Jersey, Chancery Division, Family Part, 

Essex County, Docket No. FG-07-194-15.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Anna Patras, Designated 

Counsel, 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NOT FOR PUBLICATION WITHOUT THE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 28, 2017
2 A-3788-15T4

Christopher S. Porrino, Attorney General, 

attorney for respondent (Andrea M. 

Silkowitz, Assistant Attorney General, of 

counsel; Casey Woodruff, Deputy Attorney 

General, on the brief).

Joseph E. Krakora, Public Defender, Law 

Guardian, attorney for minor (James J. 

Gross, Designated Counsel, on the brief).

PER CURIAM

H.D.C. appeals a judgment of guardianship terminating her 

parental rights to one of her four children, Tara.

1 Tara's 

father, R.B., does not appeal. R.B. voluntarily surrendered his 

parental rights, but he conditioned his surrender on Tara's 

adoption by his sister, E.B., or her husband, H.Y. An order 

entered with the judgment authorizes the Division of Child 

Protection and Permanency (Division) to file a complaint for 

Tara's adoption by E.B. and H.Y. The Division and the law 

guardian oppose H.D.C.'s appeal.

For the reasons that follow, we conclude that the Division

failed to establish termination is in Tara's best interest, as 

defined in N.J.S.A. 30:4C-15.1(a)(1)-(4). Accordingly, we 

remand for further proceedings in conformity with this opinion.

 

1 We have assigned a fictitious name to each of H.D.C.'s children 

to protect their confidentiality.
3 A-3788-15T4

I.

The Division removed H.D.C.'s children from their home in 

January 2014. At that time, her son Tyler2 was twelve; her 

daughter Tara was nine; her son Andy was two; and her daughter 

Ann was seven months old. The children were removed from the 

home they and H.D.C. shared with Andy's and Ann's father, A.A.W.

The Division removed the children on an emergency basis

pursuant to N.J.S.A. 9:6-8.29, after substantiating a report of 

neglect and inadequate supervision evidenced by the children's

poor hygiene, Tara's and Tyler's frequent absences from school,

and Tara's and Tyler's burning Andy while they were playing with 

a cigarette lighter at home unsupervised. The substantiation 

came from the school's attendance records, foul odors emanating 

from the children, their soiled mattresses and clothing, Andy's 

healing burns, and Tara's account of how the burns were 

inflicted.

After removing the children, the Division separated them, 

by gender rather than age, and placed them with two Divisionapproved resource families. Two days later, a judge approved

the removal and placement, directed H.D.C. and A.A.W. to return 

 

2 Tyler's father, E.B., Jr., was not located and default was 

entered against him on July 6, 2015.
4 A-3788-15T4

on February 24, 2014, and directed the Division to provide 

weekly supervised visitation and promptly identify relatives 

willing to care for the children.

H.D.C. and A.A.W. never disputed the Division's 

justification for removal. They acknowledged placing the 

children in "an unsafe and unsanitary home environment, which 

exposed them to a substantial risk of harm." They admitted 

failing to "properly attend to the children's hygiene and 

grooming" and "properly supervise the children on the day that 

[Andy] was burned." And, they stipulated that those acts and 

omissions constituted abuse or neglect. On that stipulation, 

the judge found H.D.C.'s and A.A.W.'s conduct caused "a child's 

physical, mental, or emotional condition to be impaired or in 

imminent danger of becoming impaired . . . ." N.J.S.A. 9:6-

8.21(c)(4).

The Division commenced its efforts to identify and address 

the causes for removal of the children when H.D.C. returned to 

court on February 24, and H.D.C. submitted to a drug test that 

was positive for marijuana. Apart from one refusal to submit to 
5 A-3788-15T4

a test in July 2014, H.D.C. did not have another positive 

result.

3

On February 25, 2014, H.D.C. submitted to a psychological 

evaluation by Elizabeth E. Groisser, Psy.D.4 During that

evaluation, H.D.C. acknowledged she had been smoking marijuana 

for several months and on a daily basis since her children were 

removed. She claimed to have a history of panic attacks 

formerly controlled by medication and explained she was using 

marijuana to address anxiety. H.D.C. admitted she was enraged 

when she learned her older children burnt Andy and hit Tara and 

Tyler with a belt. H.D.C. stressed, and the Division caseworker 

confirmed, there was no evidence of injury attributable to that 

discipline.

 

3 In its brief on appeal, the Division erroneously refers to a 

positive test for marijuana on February 13, 2014. The positive 

test-result the Division references is from January 13, 2104, 

and it was done in connection with an unsuccessful complaint for 

custody filed by a relative in a non-dissolution case. The 

trial judge recognized the date and circumstance of this test in 

his careful opinion.

4 The trial court properly excluded complex opinions and 

diagnoses included in reports prepared by experts who did not 

testify at trial. Accordingly, we do not address them.

In contrast, the judge ruled, again properly, that H.D.C.'s 

admissions and the recommendations made by non-testifying 

experts would be admitted for the limited purpose of evaluating 

the adequacy of the Division's efforts and H.D.C.'s compliance. 

Accordingly, we discuss such admissions and recommendations.
6 A-3788-15T4

Dr. Groisser recommended: parenting classes; a drug abuse 

assessment; outpatient treatment; a psychiatric evaluation to 

determine whether H.D.C. would benefit from medication for 

anxiety5; and individual psychotherapy to develop skills to deal 

with "emotion dys-regulation" and anger.

H.D.C. initially declined treatment for drug abuse, but in 

April she submitted to an assessment and commenced treatment in 

the Bridge's Stepping Stones Program the day after she was 

admitted. By that time, Andy and Ann had been removed from 

their resource families and placed with A.A.W.'s parents.

In April, 2014, Tara, who was still living with a resource 

family, was evaluated by a clinical psychologist, Brett A. 

Biller. He reported Tara expressed interest in returning to her 

mother, recalled her mother doing "nice things" with her, and 

reported enjoying her weekly visits with H.D.C. Tara knew her 

mother had to "do something important" before Tara could return 

home and hoped to return soon.

Tara did not know why she and Tyler were with different 

resource families, and she mentioned that Tyler helped her with 

homework and played games with her. Tara also described 

 

5 During a subsequent substance abuse evaluation, H.D.C. reported 

that she was last treated for anxiety in Summer 2013 and was 

supposed to return.
7 A-3788-15T4

positive interactions with her maternal grandmother in Georgia, 

and her maternal grandfather who lived closer. The child 

admitted to being worried "about things with the family" and 

wishing her "mother's attitude" and yelling would change.

For Tara, Dr. Biller recommended: family therapy to assist 

her with discussing her feelings and understanding such 

discussions would not jeopardize her relationships; a mentoring 

program; a psychological evaluation of H.D.C. to see if she has 

the appropriate insight to serve her children's needs; and a 

delay of reunification until H.D.C. was "able to maintain a 

secure physical and emotional home environment" and Tara was 

able to "safely communicate her feelings to her mother." 

Apart from a December 8, 2014 order indicating that H.D.C. 

opposed mentoring for Tara, the record on appeal does not 

disclose any other services the Division offered for Tara.

In May 2014, Tara was placed with E.B., and H.Y.; Tyler was 

still living with a resource family. H.D.C., who been 

participating in the Stepping Stones program, requested and was 

given the opportunity to attend extra sessions. Thereafter,

however, she missed six sessions in May. When the programcoordinator warned that H.D.C. was at risk of being discharged

on May 30, H.D.C.'s attendance improved. She missed five

appointments in June and two in August. H.D.C. was discharged 
8 A-3788-15T4

from Stepping Stones on August 12, 2014, with a recommendation 

that she receive "behavioral health counseling" and take any 

"medication that might be prescribed."

H.D.C. received the psychiatric evaluation. Ten days 

before that evaluation, H.D.C. was taken to the hospital by 

ambulance with severe symptoms of a panic attack, and six days 

after the evaluation, H.D.C. stipulated to abuse and neglect. 

The psychiatrist, Dr. Ambrose O. Mgbako, M.D., recommended 

H.D.C. receive the services of a psychiatrist for medication 

monitoring and cognitive behavioral therapy to handle panic 

attacks.

According to the program director for Stepping Stones,

H.D.C.'s anxiety was still "untreated" in September 2014. The 

director reported that H.D.C. said she intended to seek mental 

health services at United Behavioral Health Center in July but 

had not followed through.

H.D.C commenced an eight-week parenting program with Family 

Connections starting on November 3, 2014. That program covered 

parenting styles, discipline, establishing and enforcing family 

rules, safety, peer pressure, sexual abuse prevention, anger 

management and parent self-care. She successfully completed 

that program on December 22, 2014.
9 A-3788-15T4

H.D.C.'s effort came too late. On December 8, 2014, the 

judge approved the Division's request to file a complaint for 

termination of H.D.C.'s parental rights to all four children.

6 

The December 8 order includes several reasons for the court's 

approval of the Division's decision to proceed with termination. 

H.D.C. had: "just re-started parenting classes, although the 

case has been open for nearly one year"; not followed through 

with recommendations of evaluating clinicians; failed to attend 

substance abuse treatment and counseling as recommended; not 

received "psychotropic medication monitoring"; not made 

meaningful progress toward reunification; not demonstrated 

commitment to parenting; and, continued to share a home in 

deplorable condition with A.A.W.

Throughout the litigation, H.D.C. and A.A.W. regularly 

appeared for weekly visitations with the children. The December 

8 order includes a description of H.D.C.'s and A.A.W.'s behavior 

during those visitations. This description became important at 

trial because the only clinical psychologist who did bonding 

evaluations in this case, Dr. Peter DeNigris, relied upon it in 

 

6 At that time, the Division also sought termination of the 

fathers' respective parental rights — R.B.'s to Tara, A.A.W.'s 

to Andy and Ann, and E.B. Jr.'s to Tyler.
10 A-3788-15T4

concluding that H.D.C. and Tara did not have a healthy bond.7 

The order states: there were "interactions" that were "not 

particularly positive"; the adults focused their "attention" on 

the "younger children," while "largely" ignoring "the older 

children"; and H.D.C. was observed intimidating Tara.

The Division filed its complaint for guardianship on 

January 30, 2015. By that time, H.D.C. had completed parenting 

classes and commenced individual sessions "to address parenting 

strategies and her past history of panic attacks."

The court ordered psychological evaluations of H.D.C. and 

the children's respective fathers and bonding evaluations in 

March 2015. In July, Tyler was placed with his maternal 

grandmother in Georgia, and the first bonding evaluation was 

done in September.

During the hiatus pending bonding evaluations, H.D.C. did

well. She continued to pass every drug test, and on July 30, 

2015, Family Connections reported she had succeeded in meeting 

all goals set for individual counseling and developing parenting 

strategies and effective means for dealing with stress.

 

7 Dr. DeNigris did not review reports on the visits prepared by 

the supervisors. We know that because he testified that he 

listed all materials he reviewed in his report and the list does 

not include those reports.
11 A-3788-15T4

The problem at that point was that H.D.C. and A.A.W. had 

planned to co-parent all four children, as they had been before 

the children's removal. Because A.A.W.'s recent drug screens 

were positive for marijuana, H.D.C. and A.A.W. developed a plan 

to eliminate that barrier to reunification. During an August 3, 

2015, case management conference, A.A.W.'s attorney advised that 

they agreed to abandon their plan to co-parent and would

separate if one of them were ready to parent before the other. 

Up to that point, H.D.C. had no reason to look for different 

housing or a job because she and A.A.W. were living together in 

housing he had provided. Now she had a new challenge, finding 

and financing housing. There is no evidence that the Division 

provided any assistance on that front.

The paternal and maternal grandmothers — who, respectively, 

were caring for Andy, Ann, and Tyler — participated in the 

August 3 case management conference. Both were sworn before 

addressing the court. A.A.W.'s mother asked for assistance with 

promptly obtaining an appointment for Andy to see a specialist

because he was "slightly autistic." The Division had an 

appointment scheduled for October, but A.A.W.'s mother felt Andy

needed help sooner. Because H.D.C. and A.A.W. had not heard 

about Andy's autism until that conference, the judge directed 

the Division to keep them informed. Although the supervisors' 
12 A-3788-15T4

reports on visitation described Andy's uncontrolled behavior, 

there is no evidence that H.D.C. or A.A.W. ever received 

information on parenting techniques appropriate for such a 

special need.

The maternal grandmother reported that Tyler was doing well 

in Georgia and would start school on August 6. She told the 

judge she "would like [Tara] with [her] also,"

8 explained that 

Tara previously had been with her for five months and had 

friends and teachers she liked in Georgia and she regretted

having sent Tara back to New Jersey.

Countering the Division's contention the she did not have 

enough space to accommodate Tara and Tyler, H.D.C.'s mother said 

she did not want Tara and Tyler separated and was confident she 

could find a larger dwelling. The judge directed the Division 

to follow-up. Although H.D.C.'s mother moved to a three-bedroom 

house to accommodate Tara, the Division was still awaiting an 

interstate-inspection of that home when trial commenced on March 

11, 2016.

In December 2015, three months before trial commenced, Dr. 

DeNigris completed the bonding evaluations. Dr. DeNigris 

 

8 At trial, the Division's adoption caseworker testified that 

Tara's maternal grandmother first expressed her interest in 

having Tara live with her in September 2015, but the transcript 

of August 3 eliminates any uncertainty about the date.
13 A-3788-15T4

defines bonding as "the affectionate attachment between a child 

and his or her caregivers that serves to join them emotionally 

and that endures over space and time." In his opinion, bonding 

is significant because it provides children's "template for 

future relationships," gives them a "sense of basic trust," and 

helps them develop favorable social emotions, cope with stress 

and reach their full potential.

Dr. DeNigris evaluated the bond between Tara and H.D.C. on 

September 10, 2015. His opinion on bonding was based on a 

forty-five to sixty minute observation of H.D.C. and A.A.W. with 

all four of H.D.C.'s children. At that time, Tyler was 

thirteen, Tara was ten, Andy was three and Ann was two.

At trial, Dr. DeNigris explained the duration of 

observation period was standard and, in his opinion, adequate to 

give him an accurate picture of the relationships regardless of 

the number of participants. The number of children involved did 

not make it "more difficult to observe the nature of the 

relationship" because H.D.C. and A.A.W. intended to care for all 

four children. In his report, however, Dr. DeNigris had 

recognized that H.D.C. and A.A.W. planned to separate if the 

Division deemed one of them unfit to parent, and, by the time of 

trial, H.D.C. was planning to parent alone.
14 A-3788-15T4

Dr. DeNigris's written report on his observations during 

the bonding evaluation can be summarized as follows. On 

entering the room, Tara drew on a whiteboard, and Tyler sat by 

himself. H.D.C. and A.A.W. "immediately sat on the floor" with 

Andy and Ann. H.D.C. and Ann played with dolls. Showing her 

mother a doll, Ann said "Mommy, Look!" At that point, H.D.C. 

asked Tara if she wanted to join in, and Tara said "in a 

minute."

Tyler played with another toy on his own. H.D.C. told 

Tyler he always had to find something "weird" to play with, and 

he explained that it was "science." Ann said she was scared, 

and H.D.C. asked why. Ann did not explain, but said "Thank you, 

Mommy." While A.A.W. continued to focus on his son, Andy, 

Tyler, Tara, and H.D.C. sang a song to Ann. Andy then called, 

"Mommy look" and emptied a container of toys.

Dr. DeNigris did not observe any negative interaction 

between H.D.C. and Tara, but he reported comments H.D.C. made to 

Tyler that, in his opinion, were "derogatory" and "can only 

serve to harm the parent-child relationship." He noted, 

however, that when Tyler called Tara "ugly," H.D.C. responded by 

saying, "No. None of my kids is ugly. I'm gonna smack your 

brother because he keeps throwing pieces." He further noted, 
15 A-3788-15T4

that as H.D.C. put toys away she remarked, "There's too much 

going on."

When Tara moved away from H.D.C. to look at other toys, 

H.D.C. asked her to bring back a specific game, "Jenga," which 

Tara did. Tara and Tyler then played "Jenga" together. Because 

Andy said he was sleepy, H.D.C. put him on her lap and they 

watched Tyler and Tara play "Jenga." At trial, Dr. DeNigris 

acknowledged that H.D.C.'s having Tara return with the toy was a 

positive sign.

Noting that when A.A.W. and H.D.C. left the room at his 

request, the children "did not exhibit any overt distress" on 

"anticipated or actual separation," Dr. DeNigris indicated that 

the absence of distress demonstrated a weak bond. In contrast, 

at trial Dr. DeNigris acknowledged that at Tara's age he would 

"be more concerned if there was distress," because children of 

her age "should generally be able to separate from the adults 

. . . who [they are] with" and that lack of distress in children 

of Tara's age on separation is not as relevant as it is with 

younger children.

Based on his observations, Dr. DeNigris reported these 

opinions: "(1) a healthy bond is not present between any of the 

children and [A.A.W.]; (2) a healthy bond is not present between 

[Tyler, Tara, Andy] and [H.D.C.]; and (3) a healthy bond is 
16 A-3788-15T4

forming between [Ann] and [H.D.C.]." In reaching that opinion, 

Dr. DeNigris observed that H.D.C. and A.A.W. focused their 

attention on Andy and Ann, and they rarely gave attention to 

Tyler and Tara, even though Tyler and Tara would "vie for their 

birth mother's attention." Noting that the adults gave 

"noticeably less" attention to Tyler and Tara, Dr. DeNigris 

wrote, "This is consistent with the information contained in the 

records" reviewed.9

Importantly, in Dr. DeNigris's opinion, H.D.C. could not 

"serve as appropriate caretaker" for Tyler or Tara. The basis 

for that opinion was that he did not observe a "healthy bond" 

between the older children and their mother. He explained:

In fact, [H.D.C.] directed most of her 

attention to [Andy and Ann], while paying 

significantly less attention to [Tyler and 

Tara]. This was a theme . . . noted in the 

background records and was something that was 

supposedly addressed with [H.D.C.] during 

visitations. Yet, her actions toward [Tyler 

and Tara] . . . remained unchanged."

At trial, H.D.C.'s attorney asked Dr. DeNigris if parents 

in similar circumstances generally need to pay more attention to 

 

9 As explained in note 7 supra, Dr. DeNigris did not review the 

reports prepared by those who supervised the visitations. The 

judge reviewed the supervisors' reports and cited those exhibits 

in support of his determination that the visitation-reports 

revealed a pattern of favoritism for the younger and inattention 

to the older children.
17 A-3788-15T4

younger children. Dr. DeNigris responded: "I would expect that

a parent would be able to divide his or her attention 

appropriately among the two, three, four, however many children 

were in the room." He did not explain how, in his opinion, a 

parent could have divided his or her attention more 

"appropriately" in these circumstances.

10 Nor did he identify a 

standard accepted and applied by bonding experts to assess

appropriate division of attention among children of different 

ages.

Dr. DeNigris's opinion on H.D.C.'s capacity to parent was 

also informed by his psychological evaluation of H.D.C. 

Acknowledging that H.D.C. "generally appeared to accept 

responsibility for how her actions and inactions contributed to 

her ongoing involvement with the Division, particularly by 

acknowledging her noncompliance during the early stages," he 

observed that she "seemed to minimize the problematic nature of 

some of the issues and/or to project blame onto others,"

especially when discussing her substance abuse, Tyler and Tara's 

absences from school and the deplorable condition of her home. 

 

10 On October 8, 2015, when Dr. DeNigris evaluated the bond 

between Tara and her paternal aunt and uncle, E.B. and H.Y., 

their thirteen-year-old daughter and twenty-year-old son, who 

both resided in the home, were not present. Tara was the only 

child there. Similarly, when Dr. DeNigris evaluated the bond 

between Tara and her father, R.B., no other child was present.
18 A-3788-15T4

In his opinion, H.D.C. could not correct the problems that lead 

to removal until she recognized them. If Dr. DeNigris 

considered reports from other Division consultants indicating 

that H.D.C. acknowledged responsibility for the children's 

removal in formulating that opinion, he did not mention them.

Crediting H.D.C. for the progress she had made, Dr. 

DeNigris opined that H.D.C. could become a "viable caretaker" 

for Andy and Ann but not for Tara or Tyler. He distinguished 

H.D.C.'s capacity to parent the older and younger children 

primarily on the absence of a healthy bond between H.D.C. and 

the older children. At trial, he stressed that H.D.C. could not 

meet Tara's needs, "[e]specially in the presence of the other 

children." In his opinion, H.D.C. would be overwhelmed.

Dr. DeNigris did not recommend H.D.C.'s immediate 

reunification with Andy and Ann. In his opinion, reunification 

should be delayed until H.D.C. had "individual psychotherapy" 

geared to give her insight on issues she needed to address and 

support to deal with "the added stress that [could] occur as 

reunification nears."

In his report, Dr. DeNigris recommended permanency for Tara 

with her brother Tyler and their maternal grandmother, because 

those children had expressed interest in living with her and she 

was willing to commit to providing them permanency. At trial, 
19 A-3788-15T4

he said he also believed the sibling connection would be 

beneficial for Tara.

Circumstances were quite different when trial commenced on 

March 11, 2016. Things changed dramatically two days earlier, 

on March 9. That is when R.B. tendered and the judge accepted 

his voluntary surrender of parental rights to Tara but 

conditioned his surrender on Tara's adoption by E.B. or H.Y. As 

a consequence of R.B.'s identified surrender, Tara's permanent 

placement with her grandmother recommended by Dr. DeNigris was 

no longer a likely option.

Equally if not more significant, on March 9, the Division 

sought and obtained the judge's approval to pursue reunification 

of Andy and Ann with H.D.C., but only after three to six months 

of providing H.D.C. the therapy Dr. DeNigris recommended in 

December 2015.

The Division's attorney, representing developments 

confirmed by the Division's adoption caseworker, explained the 

dramatic change in course as follows: "The conditions and 

circumstances leading to removal of the children are being 

corrected and it may soon be safe to return [Andy and Ann] home 

to [H.D.C.] in the foreseeable future because [H.D.C. completed] 

the services that were previously recommended for her including 

parenting skills and counseling." Elaborating, the attorney 
20 A-3788-15T4

advised that H.D.C. had recently: submitted to a psychiatric 

evaluation by Dr. Sostre, and the Division was awaiting the 

doctor's report; been referred for counseling with Dr. Cox, 

which had not commenced; obtained a job; and "moved in with a 

family friend who agreed to the children residing there."

As to Tara, the Division explained that Dr. DeNigris had 

recommended H.D.C.'s reunification with her younger, but not her 

older, children. The judge approved the Division's new plan for 

the younger children, and he dismissed Ann, Andy and their 

father A.A.W. from the guardianship action.

Because of R.B.'s identified surrender and the plan for 

reunifying H.D.C. with Andy and Ann, at trial, Dr. DeNigris was 

required to address circumstances very different from those 

existing at the time of his bonding evaluations. In his report, 

Dr. DeNigris had not recommended Tara's placement with E.B. and 

H.Y., who were now poised to adopt her pursuant to R.B.'s 

voluntary surrender. To the contrary, despite his generally 

positive impressions of Tara's interactions with her aunt and 

uncle during their bonding evaluation, Dr. DeNigris was 

concerned by disclosures Tara made when he spoke to her 

privately after observing her with E.B. and H.Y. in October 

2015, and again after observing her with her father R.B., in 

December 2015.
21 A-3788-15T4

On both occasions, Dr. DeNigris asked Tara how she was 

doing with E.B. and H.Y. In October, she said it was "Ok" and

denied feeling nervous, worried or upset with them, but she also 

said she would be "nervous" if she were to remain with them 

permanently. Nevertheless, admitting she did not know her aunt 

and uncle when she moved to their home, Tara said it was 

"better." In December, Tara painted a different picture. Tara 

described E.B. as "mean at times" and noted she wanted E.B. to 

be her "last choice" for permanency. Explaining that E.B. never 

hit her, Tara said E.B. sometimes "yells and wants to hit me"

and she feels "scared" at times.

Although Dr. DeNigris reported that Tara was forming a bond 

with her paternal aunt and uncle, he also said he was surprised 

the bond was "not more fully developed given the length of time" 

Tara had been living with them. Referring to Tara's December 

disclosures about E.B., he posited that those "dynamics could be 

preventing a healthy bond from fully forming." In Dr. 

DeNigris's opinion as of the date of his report, "it was 

unlikely" Tara would suffer severe and enduring harm if removed 

from E.B. and H.Y.

At trial, Dr. DeNigris acknowledged that if the dynamics 

Tara mentioned in December did not change, it could interfere 

with the development of a fuller bond between E.B. and Tara in 
22 A-3788-15T4

the future. Nevertheless, he believed E.B. and H.Y. could 

mitigate the harm Tara would endure if her bond with H.D.C. were 

severed, because they had been providing for her needs since May 

2014.

Neither E.B. nor H.Y. testified at trial. Apart from 

information Tara provided when the judge took her testimony on 

the last day of trial, the only evidence about the state of 

Tara's relationship with E.B. at the time of trial was provided 

by Ms. Brown, the Division's adoption caseworker. According to 

Ms. Brown, she went to E.B.'s home regularly and asked Tara how 

things were going; Tara always confirmed things were fine. 

Brown discussed E.B. with Tara, and Tara had never said she was 

mean. Ms. Brown described E.B. as being a "stern" and "firm 

caregiver because she wants what's best."

Ms. Brown explained that the Division sought Tara's 

adoption by E.B. and H.Y. rather than placement with her 

maternal grandmother, as Dr. DeNigris recommended in his report,

because it was a "more permanent plan" and Tara was doing well 

with E.B. and H.Y., both at their home and in her school. She 

explained the Division's preference for adoption by E.B. over 

placement with Tara's maternal grandmother, because it would 

devastate Tara if her grandmother accepted and returned her, as 

she had done in the past.
23 A-3788-15T4

Adjusting his recommendation for placement of Tara with her 

brother Tyler and her maternal grandmother, at trial, Dr.

DeNigris identified two benefits Tara would reap if she remained 

with her aunt and uncle — one less change and adjustment period 

and an opportunity for permanency. Dr. DeNigris defined 

permanency as the "need for security, stability, attachment and 

trust" and he explained it would give Tara a "forever family 

where she knows she would remain permanently, that she would not 

be moved again." In his opinion, permanency would "help address 

any feelings of confusion, any anxiety that [Tara] has, any 

sadness or self-blame, and low self-esteem." Dr. DeNigris

explained that permanency is very important because "[w]ithout 

it, [children] live in that constant state of uncertainty where 

they can be moved at any time. Multiple moves, multiple 

adjustments [with] grief and loss at each stage."

In Dr. DeNigris's opinion, permanency was more important 

for a child of Tara's age than for Andy and Ann, because the 

need for permanency is greater for children "old enough to

understand things on a different level . . . and that level of 

understanding could increase their questioning . . . and . . . 

feelings of . . . low self-esteem or anxiety, depression." Dr. 

DeNigris further opined that adoption was preferable to foster 

care, because adopted children, unlike children in foster homes, 
24 A-3788-15T4

do not live in a state of uncertainty and, consequently, have 

less anxiety, sadness and low self-esteem than foster children. 

His explanations referred to children in general, not to 

anything in particular about H.D.C.'s children, but he did not 

explain the basis for the generality.

Noting that Tara flip-flopped in stating her preference for 

permanency, Dr. DeNigris attributed her changing preferences to 

confusion related to the delay in permanency and to her feeling 

torn about selecting a preferred caregiver from the several 

adults in her life. Apart from that confusion, Dr. DeNigris, 

who had not done a psychological evaluation of Tara, did not 

indicate any problems Tara had with self-esteem, anxiety or 

depression.

Dr. DeNigris stressed that he would not support 

reunification of Tara and her mother, even if adoption were not 

feasible. In his opinion, if Tara were reunified with H.D.C. 

and that reunification failed, it would exacerbate feelings of 

anxiety, depression, low self-esteem, guilt and self-blame

flowing from failed placements and leave her questioning whether 

she was contributing to those multiple placements. 

Dr. DeNigris further opined that Tara would be at risk of 

"abuse or neglect" if reunified with H.D.C. He based that 

opinion on "the history of the case, the fact that the issues 
25 A-3788-15T4

that contributed to . . . [] her removal have not been 

remedied"; and observations from the bonding evaluation 

where . . . [H.D.C.'s] attention was focused almost exclusively 

on the two younger children" at Tara's expense.

11 In his 

opinion, whatever the placement, H.D.C. was not fit to parent

Tara, and would be overwhelmed by caring for Andy, Ann, and 

Tara.

H.D.C. testified on her own behalf. She acknowledged that 

she had no relationship with Tara's father R.B. and did not have 

a great relationship with his sister, E.B. She did not agree 

with the Division's plan for Tara's adoption by E.B. and H.Y.,

because Tara did not like it with them and because H.D.C. felt 

it would be best for Tara if she were with her mother and 

siblings.

Tara was the last witness at trial, and Dr. DeNigris 

rendered his opinions without the benefit of her testimony or 

hypotheticals based upon it. The judge interviewed Tara on the 

record but not in the physical presence of H.D.C. or the 

attorneys, who listened from a different room. During that 

 

11 In his final decision, the judge interpreted Dr. DeNigris's 

opinion on risk of abuse or neglect as an opinion on risk of 

physical harm. Dr. DeNigris did not say that, and, as 

previously noted, there is no evidence that Tara sustained 

physical harm under H.D.C.'s care.
26 A-3788-15T4

interview, the judge posed questions developed beforehand with 

input from the attorneys. Before posing any question, the judge 

ascertained that Tara understood her obligation to tell the 

truth.

Tara told the judge she liked living with E.B., her uncle 

and her twenty- and thirteen-year old cousins. She also said 

she had enjoyed spending summers in Georgia with her grandmother 

in the past and wanted to do that again; when they were 

together, she and her grandmother planted flowers and baked 

things. Tara also told the judge she felt comfortable with E.B.

and said she cooked things with E.B. sometimes.

Tara's wishes for the future were to work with her brother 

Tyler in a bakery and participate in gymnastics and ice-skating. 

She also told the judge she spoke to her brother almost every 

week.

When asked if others were trying to influence her answers, 

Tara said she was not sure. She said E.B. had spoken to her 

about the interview. Tara also admitted being concerned about 

her answers hurting someone's feelings. She told the judge she 

would be sad if she did not live with Tyler, but she also said 

she would be sad if she did not live with her aunt, her uncle, 

her cousins, her mom, or Andy and Ann. Tara's response deviated 

only when she was asked about being sad if she did not live with 
27 A-3788-15T4

her father. In R.B.'s case she replied, "I don't know about

that." As the judge noted in his final decision, Tara did not 

express any preference about her living arrangement.

Immediately before the judge delivered his oral opinion 

terminating H.D.C.'s parental relationship with Tara, the judge 

approved another change in the Division's plan for Tara's 

siblings. Specifically, the judge gave the Division approval to 

forego termination of H.D.C.'s parental rights to Tyler and 

provide permanency for him with his maternal grandmother 

pursuant to the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A1 to -7 (KLG).

Like the Division's plan to reunify Andy and Ann with 

H.D.C. after affording H.D.C. three to six months of counseling, 

the Division's new plan for Tyler could not be implemented for 

several months. That is so because Tyler had been with his 

grandmother for about nine consecutive months on March 9 when 

the judge approved the KLG plan, but his maternal grandmother 

could not even file her petition for guardianship under the Act 

until Tyler had been living with her for twelve consecutive 

months. N.J.S.A. 3B:12A-5(b)(10).

As a consequence of the Division's court-approved plans for 

her siblings and R.B.'s identified surrender of his parental 

rights to Tara, Tara was the only one of H.D.C.'s children whose 
28 A-3788-15T4

mother-child relationship was at stake when the judge delivered 

his decision terminating her parental rights to Tara.

The judge addressed Tara's unique position among H.D.C.'s 

children immediately after he delivered his oral decision 

terminating H.D.C.'s parental rights. He did not address it in 

deciding whether the termination of H.D.C. was in Tara's best 

interest given this circumstance.

The judge raised the issue of Tara's unique position 

himself, after he delivered his decision and when H.D.C.'s 

attorney requested continuation of visitation pending appeal. 

The judge ordered one visit per month, and, addressing that 

visitation, the judge directed: "[T]here needs to be no talking

or exchange between the mother and [Tara] about the paternal 

relatives [or] about where her siblings are going . . . ."12 The 

judge noted the potential for Tara to "feel that it's because of 

her [that] she's not going home and yet her younger siblings are 

going home." The judge explained that Tara would likely think 

"the only difference between the siblings and her[,] is her. In 

 

12 The judge's concern echoed one expressed by Tara's law 

guardian during a colloquy on questions the parties proposed the 

judge address while interviewing Tara in camera. Referring to 

one question the Law Guardian exclaimed, "[W]hy on earth would 

you tell a little girl that your siblings will be going home to 

mommy but you can't. I mean that's horrible. I think that's 

awful."
29 A-3788-15T4

other words, that it's her fault that the younger siblings are 

going home." The judge elaborated:

 [Tara] know[s] her mother loves her, she 

know[s] her mother wants her and she could 

really feel responsible for herself not going 

home had she done something different. And 

so any singling [sic] or comments about the 

younger siblings going home could invoke 

inadvertent or otherwise those feelings in 

[Tara].

To diminish the risk of this potential harm to Tara, the 

judge directed the Division's attorney to have Dr. Cox (who 

would be providing H.D.C. the therapy pending reunification with 

Andy and Ann recommended by Dr. DeNigris), and the Division's

caseworker (who would be arranging H.D.C.'s monthly visitation 

with Tara and Tyler's kinship legal guardianship), to instruct 

H.D.C. on proper responses to the difficult questions Tara was 

likely to have.

II.

A parent's right to a relationship with his or child may be 

terminated only if the State proves each of the four prongs of 

the statutorily defined best interest test by clear and 

convincing evidence. N.J. Div. of Youth & Family Servs. v. 

E.P., 196 N.J. 88, 103 (2008). The Division must establish 

that:
30 A-3788-15T4

(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.

. . . ;

(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;

(4) Termination of parental rights will not 

do more harm than good.

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

The four prongs "are not discrete and separate; they 

overlap to offer a full picture of the child's best interests." 

N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 554 

(2014). Ordinarily, the court must decide "whether the parents 

can raise their children without causing them further harm" and 

the evidence "focus[es] on past abuse and neglect and on the 

likelihood of it continuing"; the "inquiry is not whether the 

biological parents are fit but whether they can cease causing 

their child harm." In re Guardianship of J.C., 129 N.J. 1, 10 

(1992). "'The considerations involved are extremely fact 

sensitive and require particularized evidence that address[es] 
31 A-3788-15T4

the specific circumstance in the given case.'" R.G., supra, 217 

N.J. at 554 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 

189 N.J. 261, 280 (2007) (citations and internal quotation marks 

omitted)).

In his oral decision, the trial judge addressed the 

evidence pertinent to each prong of the best interest test and 

concluded that the Division met its burden of proof. Where, as 

here, the judge had the opportunity to assess credibility and 

the special expertise in matters of child welfare attributed to 

judges of the Family Part, reviewing courts generally must defer 

to judge's factual findings supported by the record. E.P., 

supra, 196 N.J. at 104; M.M., supra, 189 N.J. at 293. "Only 

when the trial court's conclusions are so 'clearly mistaken' or 

'wide of the mark' should an appellate court intervene and make 

its own findings to ensure that there is not a denial of 

justice." E.P., supra, 196 N.J. at 104.

This was a difficult case made more difficult by the 

dramatic eleventh hour changes in the permanency plans for Tara 

and her three half-siblings. Having recognized the potential 

for Tara to endure unique harm as the only one of H.D.C.'s 

children to have a severed mother-child relationship, the judge 

should have considered the specific circumstance of this case in 

addressing Tara's best interest. R.G., supra, 217 N.J. at 554. 
32 A-3788-15T4

The only expert testimony presented did not address that 

question. Indeed, the expert could not have expressed an 

opinion on that subject because Tara was not in this unique 

position until the trial was over and the judge authorized the 

Division to pursue KLG for Tyler.

As the Supreme Court has instructed, in termination cases 

"[a] court must assure a complete and balanced presentation of 

all relevant and material evidence sufficient to enable it to 

make a sound determination consistent with the child's best 

interests." J.C., supra, 129 N.J. at 22; see generally id. at 

19-24 (discussing the appropriate use of expert opinions on 

bonding and differing schools of thought on its importance in 

the context of case where a parent's delay allowed the formation 

of a bond with a foster parent). To that end, a judge "should 

not hesitate to call on independent experts . . . ." Id. at 22.

We recognize the judge was dealing with the tension between 

securing permanency promptly and developing an adequate record. 

There is no question that "[a] child's need for permanency is an 

important consideration" under the best interest test. M.M., 

supra, 189 N.J. at 281. But the case-specific circumstances in 

this case include: a pending report on a recent psychiatric 

evaluation of H.D.C.; counseling for H.D.C. for three to six 

months; and a three-month waiting period before Tyler's maternal 
33 A-3788-15T4

grandmother could file a petition for his KLG. In these 

circumstances, the judge could and should have, at a minimum, 

delayed issuance of his decision until the psychiatrist

transmitted the report.

Moreover, as previously noted, Dr. DeNigris had 

reservations about Tara's bond with E.B. and provided only a 

conclusory explanation for his opinion that E.B. could mitigate 

the harm Tara would endure. Similarly, Dr. DeNigris had not 

explained the basis for his opinion that H.D.C.'s division of 

her attention among her children was not appropriate or how that 

opinion supported his conclusion that H.D.C. would be 

overwhelmed if she were caring for Andy, Ann, and Tara. 

Unsupported and unexplained expert opinion has no value. J.C., 

supra, 129 N.J. at 23 (noting that "[t]he main point in weighing 

expert evidence is the fit between the expert opinion based on 

scientific theory and professional experience and the facts of 

the case"); id. at 22 (noting that "[a] particular theory 

suffices if it has substantial acceptance within the community 

of experts").

In addressing the first, second and fourth prongs of the 

best interest test, the judge relied in large part, albeit not 

exclusively, on Dr. DeNigris's opinions. The importance of Dr. 

DeNigris's opinion to the judge's decision cannot be overstated. 
34 A-3788-15T4

Throughout his decision, the judge stressed that Dr. DeNigris's 

opinion, which he found credible, unimpeached and unrebutted,

was the only expert opinion before the court. Indeed, Dr. 

DeNigris's conclusion that, with a psychiatric examination and 

additional therapy, H.D.C. could parent her younger children but 

not Tara or Tyler in the reasonably foreseeable future was the 

cornerstone for the judge's decision. Moreover, the judge 

recognized a risk of harm to Tara — her unique position among 

her siblings — that the expert had not addressed and the judge 

deemed to be sufficiently significant and complex to require an 

expert's advice on formulating appropriate responses to Tara's 

likely questions.

For all of the foregoing reasons, we reverse the judgment 

and remand for reconsideration of Tara's best interest in light 

of the potential harm from her unique position among her 

siblings. In reassessing Tara's best interest, the judge should 

also consider Dr. Sostre's report, H.D.C.'s progress or lack 

thereof in counseling and such updated or additional expert 

evidence the judge requires or permits. To the extent the judge 

relied on H.D.C.'s failure to secure housing in evaluating 

Tara's best interest, we also direct judge to consider whether 

the Division provided reasonable assistance to H.D.C. when she 
35 A-3788-15T4

and A.A.W. announced their intention to separate in the event 

that one but not the other were deemed ready to parent.

III.

H.D.C. also claims entitlement to reversal based on the law 

guardian's failure to advocate Tara's interests and wishes as 

required by N.J.S.A. 9:6-8.23(a). We have considered the 

arguments offered on that point in light of the record and 

conclude they have insufficient merit to warrant discussion in a 

written opinion. R. 2:11-3(e)(1)(E).

Reversed and remanded for further proceedings in conformity 

with this opinion.