ALBRIGHT, ASSIST DEPUTY PUBLIC DEFENDER ON BEHALF OF THE PETITIONER. MARY M. MC
MANUS-SMITH: MARY MCGUIRE SMITH. ELEANOR M. ARMSTRONG: ELEANOR ARMSTRONG.
NEHA GOGATE: NEHA GOGATE, DEPUTY PUBLIC DEFENDER. PROF. RANDI S.
MANDELBAUM: RANDI MANDELBAUM HERE FOR AM ME KEY. CHIEF JUSTICE RABNER: WELCOME,
COUNSEL. MR. ALBRIGHT, PLEASE GO AHEAD. JOHN A. ALBRIGHT: GOOD AFTERNOON
GEP, YOUR HONORS. MAY IT PLEASE THE COURT. IF I COULD JUST RESERVE TWO MINUTES FOR REBUTTAL.
CHIEF JUSTICE RABNER: THAT'S FINE. JOHN A. ALBRIGHT: THE COURT
SAID 37 YEARS AGO IN THE SEMINAL CASE OF A W THAT THE TERMINATION OF PARENTAL RIGHTS CASES
THE BEST INTERESTS OF A CHILD CAN NEVER MEAN THE BETTER INTERESTS OF A CHILD. THE TITLE
30 CASES AND CASES SUCH AS THE ONE BEFORE TODAY, ALL TOO MANY HAVE BEEN BETTER INTEREST
COMPETITIONS THAT DISADVANTAGED PARENTS ARE SIMPLY IN NO POSITION TO WIN. ALTHOUGH THE
SECOND PRONG FROM A W AS CODIFIED DID NOT INCLUDE A PROVISION THAT ALLOWED THE DIVISION
TO BRING A CASE FOR POTENTIAL FOSTER PARENT RATHER THAN FOR PARENT UN-FIGHTNESS, THAT
AVENUE WAS OPEN IN 1992 WITH THE COURT'S DECISIONS IN J C AND K L F. NOW
FORMALLY ENSHRINED IN THE TEST, BATTLES WERE EXPERTS WERE RETAINED TO PROVE THEIR WORTH
TO THE CHILD. THIS TRANSFORMED THE BEST INTEREST TEST INTO PRECISELY WHAT THE COURT PRE-
CAUTIONED AGAINST IN A W. FAST FORWARD TO JULY 2021. THE LEGISLATURE DRAMATICALLY ALTERED
THE LEGAL LANDSCAPE BY CHANGING THE STANDARD TO RE-MOVE THE SOURCE OF FOSTER CARE BONDING
EVIDENCE FOR THE PURPOSE OF ENSURING FOCUS SEVERING THE CHILD RELATIONSHIP WITH RESOURCE
FAMILY PARENTS. TO ACCOMPLISH THIS CLEARLY STATED PURPOSE, THE LEGISLATURE
DELETED THE FORMER SENTENCE FROM THE SECOND PRONG OF THE BEST INTEREST TEST WHICH ALLOWED
UNDER PRONG TWO THAT QUOTE SUCH HARM MAY INCLUDE EVIDENCE THAT SEPARATING A CHILD FROM
THIS RESOURCE FAMILY PARENTS WOULD ALSO PSYCHOLOGICAL HARM TO THE CHILD.
AFTER THE DELETION, PRONG TWO NOW SIMPLY ASKS WHERE THE PARENT IS UN-WILLING OR UNABLE
TO ELIMINATE THE HARM FACING THE CHILD. THE EFFECTIVE DELETION ON PRONG TWO IS
IMMEDIATELY CLEAR AND UN-DISPUTED IN THIS CASE. THE DIVISION IS NO LONGER PERMIT TO DO
BRING A CASE TO TERMINATE AN OTHERWISE FIT PARENTS FROM THEIR CONSTITUTIONAL RIGHTS TO
THEIR CHILD BASED ON FOSTER CARE OR BONDING. I SUBMIT TO YOU THAT WHAT MIGHT NOT
HAVE BEEN IMMEDIATELY PAERNLT AT THE TIME WHEN IT HELD THAT FOSTER BONDING EVIDENCE MUST
NOW BE CONSIDERED UNDER PRONG FOUR AS A MATTER OF INTERPRETATION, IS THAT WITH THE JULY
21ST DELETION FROM PRONG TWO, THE LEGISLATURE SHATTERED THE LINK BETWEEN PRONGS TWO AND
FOUR. SUCH EVIDENCE WAS ONLY PERMISSIBLE IN PRONG FOUR BECAUSE FOSTER PARENT SEPARATION
WAS A HARM. WITH THE DELETION OF PRONG TWO, THE LEGISLATURE DID SOMETHING FAR MORE PROPOUND.
AS J C SAID, THE HARM IDENTIFIED UNDER PRONG 202 IS SOMETHING WAS ATTRIBUTABLE TO THE
NATURAL PARENTS. WITH THE DELETION THE LEGISLATURE SAID WE ARE NO LONGER GOING TO
ATTRIBUTE THIS HARM TO PARENTS BECAUSE IN FACT CHILDREN CAN FORM AND MAINTAIN MANY HEALTHY
ATTACHMENTS THROUGHOUT THEIR CHILD HOODS. WHAT DOES THIS MEAN FOR PRONG FOUR OF THE TEST.
THE CASE LAW TELLS US THAT THE GOOD IN THE FOURNG PRONG EQUATION HAS ONLY EVER BEEN A
MIRROR OR THE INVERSE OF THE HARM. FOSTER SEPARATION, THE INVERSE IS THAT A CHILD WOULD
BE SPARED THAT HARM. THE HARM PART OF THE FOURTH PRONG EQUATION IS ALWAYS THE
HARM THAT WILL RESULT IN THE PERMANENT SEVERANCE OF A NATURAL PARENT CHILD RELATIONSHIP.
THE CHILD WOULD NO LONGER BE SUBJECT TO THE SPECIFIC HARMS IDENTIFIED BY THE FIRST TWO
PRONGS. SPECIFICALLY, THOSE PRONGS MENTIONED DANGER TO THE CHILD'S HEALTH AND WELFARE
AND THE ABSENCE OF A SAFE AND STABLE HOME. THIS IS SO BECAUSE G L GAVE US ONE OF THE
MOST IMPORTANT AND FOUNDATIONAL PRINCIPLES WE HAVE NOW IN HOW ALL FOUR STANDARDS ARE TO BE
CONSIDERED. THE STANDARDS ARE ALL CONDUCT BASED. THE RELATIVE STRENGTH OF
A FOSTER CAREGIVER CHILD BOND IS SIMPLY SOMETHING THAT'S NOT ATTRIBUTE TO PARENTAL CONDUCT.
THE APPELLATE DIVISION HELD AS A MATTER OF STATUTORY INTERPRETATION THAT FOSTER
CAREGIVER BONDING MUST NOW BE CONSIDERED UNDER PRONG FOUR. SPECIFICALLY, ONE, COURTS MUST
FULLY CONSIDER THE TOTALITY OF THE CIRCUMSTANCES BY THE VERY LEAST CONSIDERING THE CHILD
BOND TO A CURRENT PLACEMENT WHEN EVALUATING PRONG FOUR AND TWO A TRIAL COURT MUST QUOTE
MAKE A FINDING UNDER PRONG TWO AND THEN WEIGH THAT FINDING AGAINST ALL THE AGAINST THAT
MAY BE CONSIDERED UNDER PRONG FOUR INCLUDING HARM THAT WOULD RESULT FROM BONDS FORMED.
WE'RE RESPECTFULLY URGING THE COURT TODAY TO PRONG TWO TO PRONG FOUR IN THIS CASE FORDS
THE MOST BASICALLY GOALS OF THE AMENDMENTS TO ONLY ALLOW PARENT TERMINATION OF RIGHTS
BECAUSE OF PARENTAL UN-FITNESS. WITH THE BENEFIT OF HINDSIGHT, IN 2021 IS NOW BEFORE
THE COURT. THAT CHILDREN WILL BECOME MORE BONDED TO OTHERS WHEN THEY ARE PLACED AWAY
FROM THEIR PARENTS IS A COMMON NOTION NO EXPERT HAS NEEDED TO EXPLAIN. THE FOURTH PRONG
IS A FAIL SAFE DETERMINATION. WEIGHING FOSTER BONDING EVIDENCE AGAINST PARENTAL FITNESS
IS CONTRARY TO THE BEST INTEREST TEST. SECOND, WE ARE ASKING FOR REVERSAL OF THE
APPELLATE DIVISION'S DIVISION. THE TEST HAS NEVER BEEN ONE OTHER THAN THAT EACH AND EVERY
PRONG. THAT GOES ALL THE WAY BACK TO A W. WHEN EACH OF THE FOUR PRONGS MUST BE PROVED
BY CLEAR AND CONVINCING EVIDENCE THAT STANDARD IS NOT UN-LIKE A REASONABLE DOUBT STANDARD.
IF THE PROOF ON ANYONE SIMILAR ELEMENT FAILS SO TOO DOES THE STATES CASE. IF THERE'S
A FAILURE OF PROOF SO TOO DOES THE DIVISION's CASE FAIL N A TOTALITY OF THE CIRCUMSTANCES
TEST, THE PRONGS BLEED TOGETHER INTO SOMETHING UN-RECOGNIZABLE, PERHAPS RESOLVING THE
DIVISION OF ITS BURDEN OF PROOF WHEN THE EVIDENCE OF PRESERVING ONE PRONG IS GREATER THAN
ANOTHER. FOSTER BONDING THREATENS TO SWALLOW THE FIT PRONGS THE LEGISLATURE CHOSE TO
MAKE PARAMOUNT. TO SUM UP, WE ARE MERELY ASKING THE COURT TO PERMIT THE JULY
2021 AMENDMENTS TO TAKE EFFECT AT LONG LAST. CHIEF JUSTICE RABNER: COUNSEL
IN YOUR ARGUMENT THERE IS NO ROOM FOR CONSIDERATION OF HARM CAUSED BY SEPARATION
UNDER ANY OF THE FOUR PRONGS. IS THAT CORRECT? NOT UNDER TWO. NOT UNDER FOUR. AND I
IMAGINE NOT ONLY ONE AND THREE AS WELL. IS THAT FAIR? JOHN A. ALBRIGHT:
THAT'S CORRECT. CHIEF JUSTICE RABNER: WHAT IF THERE'S A CASE, A FAIR CASE
WHERE IT'S NOT IN DISPUTE THAT THERE WOULD BE HARMED CAUSE BICEP RATION. SUPPOSE YOU HAD
EXPERT REPORTS ON BOTH SIDES THAT SAID A BOND HAD BEEN FORMED AND SEVERING THAT BOND WOULD
LEAD TO ENDURING PSYCHOLOGICAL HARM TO THE CHILD. MAY THAT BE CONSIDERED? JOHN A.
ALBRIGHT: PRONG TWO, I BELIEVE PRONG TWO SPECIFICALLY DELETED THE EXACT TYPE OF
EVIDENCE THAT YOUR HONOR IS REFERRING TO. CHIEF JUSTICE RABNER: I'M JUST ASKING
WHETHER IT CAN BE CONSIDERED. I UNDERSTAND YOUR POSITION. IT SOUNDS LIKE FOLLOWING UP
ON YOUR EARLIER ANSWER IS, IT MAVENT BE CONSIDERED. JOHN A. ALBRIGHT: THE
ANSWER IS, NO, IT CANNOT BE CONSIDERED UNDER PRONG TWO OR FOUR BECAUSE THOSE PRONGS HAVE
ALWAYS BEEN LINKED. CHIEF JUSTICE RABNER: STEP BACK FOR JUST A MOMENT. GIVEN
THE STATE'S ROLE OF PROTECTING CHILDREN, DOES THAT SEEM A BIT OFF? JOHN A.
ALBRIGHT: NOT AT ALL, YOUR HONOR. BECAUSE, NUMBER ONE, WHAT WE'RE TALKING ABOUT IS NOT
ANY EVIDENCE AT ALL ABOUT THE CHILD'S PLACEMENT. WHEN I REFER TO THAT EVIDENCE OR THIS
EVIDENCE OR FOSTER CAREGIVER BONDING EVIDENCE I'M TALKING SPECIFICALLY ABOUT EXPERT EVIDENCE.
SO -- JUSTICE PATTERSON: WHEN YOU SAYS IT'S RELEVANT UNDER RULE 401, ARE YOU
MAKING A DISTINCTION BETWEEN FACT AND EXPERT EVIDENCE? JOHN A. ALBRIGHT: YES.
JUSTICE PATTERSON: I CANDIDLY DID NOT UNDERSTAND THAT ARGUMENT. YOU SAID
WELL WE'RE NOT SAYING IT'S NOT RELEVANT BUT IT'S ALLOWED UNDER RULE -- NEW JERSEY RUL
E OF EVIDENCE 401 BUT NOT UNDER ANY PRONG. SO YOU'RE SAYING THERE CAN BE FACT EVIDENCE
OF THE BOND BETWEEN THE RESOURCE PARENTS AND THE CHILD? JOHN A. ALBRIGHT: THE
SPECIFIC HARM OF THE LACK OF A PERMANENT PLACEMENT IS SPECIFICALLY IDENTIFIED WITHIN PRONG
TWO, YOUR HONOR. SO WHAT I'M SAYING IS, THERE CAN BE EVIDENCE -- THE GOOD FROM THAT
IS IN THE FOURTH PRONG IS IN INVERSE OF THE HARM. SO, IN OTHER WORDS, IT WOULD USUALLY
BE FAIR FOR A CASE WORKER OR SOMEONE ELSE TO TESTIFY ABOUT THE NATURE OF THE PLACEMENT.
JUSTICE PATTERSON: JUST ESSENTIALLY NAME, RANK AND SERIAL NUMBER, THE PLACEMENT
IS WITH THESE RESOURCE PARENTS, IT'S BEEN GOING ON FOR THREE YEARS SINCE THIS DATE. IT
CONTINUES TO BE A SUCCESSFUL PLACEMENT. AND THAT'S IT. THE COURT CANNOT CONSIDER
ANYTHING ABOUT THE CONTENT OF THE RELATIONSHIP BETWEEN THE CHILD AND THE RESOURCE PARENTS?
JOHN A. ALBRIGHT: YOUR HONOR, YOU'RE GOING TO DO THAT -- IF YOU'RE GOING TO DO
THAT WITH EXPERT BONDING EVIDENCE, AS WE KNOW IT TODAY, I WOULD SAY THAT AFTER THE AMENDMENTS,
IT'S CLEAR THAT THAT IS -- THERE'S NO END TO THAT ROAD THAT DOESN'T LEAD TO A BETTER INTEREST
TEST. CHIEF JUSTICE RABNER: HOW IS IT CLEAR? WHERE DOES THE LEGISLATURE EXPRESSLY
SAY THAT IT MAY NOT BE CONSIDERED UNDER PRONG FOUR? JOHN A. ALBRIGHT: BECAUSE
THE DELETION, YOUR HONOR, FROM PRONG TWO -- CHIEF JUSTICE RABNER: THAT ADDRESSES
PRONG TWO. IS THERE AN EXPRESSED STATEMENT IN THE LEGISLATIVE HISTORY THAT IT MAY NOT
BE CONSIDERED UNDER PRONG FOUR? JOHN A. ALBRIGHT: YOUR HONOR, THANK YOU FOR
THE QUESTION. I WOULD JUST REFER THE COURT TO THE FINDINGS AND DECLARATIONS WHICH I WANTED
TO SAY A WORD ABOUT ANYWAY. BUT -- JUSTICE FASCIALE: AFTER YOU DO THAT,
COUNSEL, I HAVE A HYPOTHETICAL FOR YOU. GO AHEAD. JOHN A. ALBRIGHT: THANK YOU,
YOUR HONOR. THE FINDINGS AND DECLARATIONS TELL THE COURT HOW TO READ THE
BEST INTEREST TEST NOW. SO WE HAVE SOMETHING THAT'S FAR BETTER THAN THE LEGISLATIVE
HISTORY THAT THE APPELLATE DIVISION RE-LIED ON. JUSTICE PATTERSON: THE EXISTENCE
OF A HEALTHY ATTACHMENT BETWEEN THE CHILD AND THE CHILD'S RESOURCE FAMILY PARENT DOES NOT
IN AND OF ITSELF PRECLUDE THE CHILD FROM MAINTAINING, FORMING, RELATIONSHIPS WITH THE
CHILD'S PARENT AND CAREGIVER OF ORIGIN. VERY CAREFULLY WRITTEN. IT IS NOT SAYING THAT
IT IS NOT PART OF THE MIX THAT THE JUDGE -- OF EVIDENCE THAT THE JUDGE MAY CONSIDER UNDER
THE FINAL PRONG. RESPECTFULLY, THEY KNOW HOW TO SAY -- OBVIOUSLY YOU READ A LOT OF STATUTES
AS DO WE. THEY KNOW HOW TO SAY DO NOT CONSIDER X FACTOR WHEN THEY WANT TO. JOHN A.
ALBRIGHT: RIGHT. THE SHORT ANSWER IS BECAUSE THEN THE DELETION FROM PRONG TWO WOULD
BECOME MEANINGLESS. CHIEF JUSTICE RABNER: IS THAT SO OR DOES IT MEAN IT'S JUST
NOT DOUBLE COUNTED, IF YOU WILL? UNDER TWO AND FOUR. JOHN A. ALBRIGHT: I
UNDERSTAND WHAT YOUR HONOR IS SAYING. WHEN WE TRY TO PLACE DIFFERENT LABELS ON THIS EVIDENCE,
EXPERT FOSTER CAREGIVER BONDING EVIDENCE, IT'S JUST A SEMANTIC GAME. THE EVIDENCE IS
THE SAME. IT WAS ONLY EVER ALLOWED INTO PRONG FOUR BECAUSE OF PRONG TWO. IN OTHER WORDS,
THE SEVERANCE OF THE FOSTER CAREGIVER CHILD RELATIONSHIP UNDER PRONG TWO WAS A
RECOGNIZED, COGNIZABLE HARM WHICH ALLOWED THEM TO MOVE IT TO PRONG FOUR BECAUSE THE INVERSE
OF THAT IS THAT THE PROTECTION FROM THAT HARM IS A GOOD. SO WE HAVE -- THE HARMS ARE
ALL SPECIFICALLY MENTIONED WITHIN THE FITNESS PRONGS OF THE TEST. AND I THINK I READ
THOSE ALREADY. CHIEF JUSTICE RABNER: IS THERE ANOTHER PLACE OF LEGISLATIVE
HISTORY YOU'RE RE-LAYING ON FOR AN EXPRESSED PROHIBITION AGAINST PRONG FOUR. JUSTICE
PATTERSON READ ONE F. JOHN A. ALBRIGHT: WITH ALL DUE RESPECT, I DON'T
THINK YOU NEED TO LOOK TO LEGISLATIVE HISTORY. IT SAYS RIGHT IN THE STATUTE UNDER G OF
CHAPTER 154, THEREFORE THE LEGISLATURE IS TELLING EVERYONE WHY THEY'RE AMENDING THE LAW.
TO STRENGTHEN THE FOCUS ON PARENTS' FITNESS AS OPPOSED TO CONSIDERING THE IMPACT OF SEVERING
THE CHILD'S RELATIONSHIP WITH THE RESOURCE FAMILY's PARENTS. JUSTICE
FASCIALE: LET ME POSE THIS HYPOTHETICAL. A BIOLOGICAL MOTHER IS A DRUG DEALER AND A DRUG
USER AND GIVES BIRTH TO A CHILD WITH DRUG WITHDRAWAL SYSTEMS. SHE'S A HEROIN ADDICT.
AT THE HOSPITAL THE CHILD IS RE-MOVED FROM THE MOTHER's CARE. THEY DO A DOD HEARING.
THE CHILD IS PLACED WITH RESOURCE PARENTS A AND B. THEY DO THE F M CASE. THERE'S A FINDING
THE BIOLOGICAL NEGLECTED AND ABUSED THE CHILD. THEY CLOSE THAT CASE, THEY OPEN THE F
G CASE. THREE OR FOUR YEARS LATER. THE DIVISION AT THIS POINT SHAS SHOWN AS TO PRONG
ONE THAT THE MOTHER HARMED THE CHILD. AS TO PRONG TWO THE MOTHER IS EITHER UN-WILLING OR
IN-CAPABLE OF ELIMINATING THE HARM. FORGET ABOUT RE-MOVING THE CHILD FROM A AND B WOULD
CREATE HARM. AS TO PRONG THREE THEY'VE SHOWN THE PROVISION HAS PROVIDED ALL OF THESE
SERVICES TO THE BIOLOGICAL MOTHER AND THE MOTHER DIDN'T SHOW UP FOR THE SERVICES, SHE WAS NOT
COMPLIANT, WHATEVER. NOW AS TO PRONG FOUR, THIS BABY HAS BEEN WITH THE RESOURCE
PARENTS FOR FOUR YEARS. HAS A BOND. IS ENTITLED TO PERMANENCY. NEEDS AN END TO THIS
SCENARIO. AS THE C I C JUDGE IS NOW CONFRONTED WITH PRONG FOUR, ARE YOU TELLING US THAT
THE JUDGE CANNOT CONSIDER THE BONDING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WILL
DO MORE HARM IF THEY RE-MOVE THAT BABY FROM THE RESOURCE PARENTS THAN GOOD GIVEN ALL THE
OTHER FINDINGS AS TO PRONGS ONE, TWO AND THREE? JOHN A. ALBRIGHT: SO A COUPLE
OF THINGS IN RESPONSE TO YOUR HONOR'S QUESTION. NUMBER ONE, THE COURT IN I S AND C M
AND G L TOLD US THAT THAT BOND WAS GOING TO NATURALLY FORM AND BECOME A STRONG BOND OVER
TIME. THAT'S A COMMON SENSE NOTION THAT IS PROVEN BY PURE LOGIC AND COMMON SENSE. SO
THE EXPERT TESTIMONY I WOULD JUST SUBMIT WHY WOULD YOU NEED THE EXPERT TESTIMONY TO PROVE
SOMETHING THAT'S A COMMON SENSE -- JUSTICE FASCIALE: LET'S RE-MOVE THE EXPERT
FROM THE CASE. IT'S OBVIOUS THAT THERE'S THIS BOND BETWEEN THE CHILD AND THE BIOLOGICAL
-- AND THE A AND B, THE RESOURCE PARENTS. THE CHILD IS THRIVING. THE CHILD IS GOING
TO SCHOOL. THE CHILD'S HAVE REGULAR MEALS. THE CHILD HAS HOUSING. ALL THE THINGS WE
LOOK TO WHEN WE DO THESE KINDS OF CASES. SO THERE'S A SERIOUS BOND BETWEEN THE CHILD
AND THE RESOURCE PARENTS. WHY CAN'T THE C I C JUDGE CONSIDER THAT BOND WHEN
EVALUATING WHETHER THE DIVISION HAS MET ITS BURDEN BY CLEAR AND CONVINCING EVIDENCE THAT
TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD? JOHN A. ALBRIGHT:
I DON'T THINK THE TEST DOES BAR THE JUDGE FROM CONSIDERING ALL THOSE THINGS.
JUSTICE FASCIALE: OKAY. SO EVEN THOUGH THE JUDGE CANNOT CONSIDER WHETHER RE-MOVING THE
CHILD FROM THE RESOURCE PARENTS AS TO PRONG TWO WILL AMOUNT TO ENDURING HARM, THE JUDGE
CAN CONSIDER THE BOND, THE RELATIONSHIP BETWEEN THE RESOURCE PARENTS AND THE CHILD AS
TO PRONG FOUR. WITHOUT REGARD TO THE AMENDMENT. JOHN A. ALBRIGHT: I GUESS
IT DEPENDS ON WHAT YOUR HONOR IS REFERRING TO AS THE BOND. I THINK THE FAMILY PART JUDGE
DOES NOT NEED EXPERT TESTIMONY OR, QUOTE, UNQUOTE, BONDING EVALUATIONS OR COMPARATIVE
BONDING EVALUATIONS TO KNOW BASED UPON THE FACTUAL CIRCUMSTANCES SURROUNDING THAT
PLACEMENT. SO IT'S MORE THAN FAIR -- JUSTICE PIERRE-LOUIS: WHEN YOU'RE SAYING
TO JUST KNOW, I'M HAVING TROUBLE UNDERSTANDING THE ARGUMENT JUSTICE PATTERSON MADE. SO
WHAT IS IT -- BASED ON JUSTICE FASCIALE's HYPOTHETICAL, WHAT IS IT AND HOW DOES THIS
EVIDENCE COME BEFORE THE FAMILY COURT JUDGE AND HOW DOES THE FAMILY COURT JUDGE USE THAT
EVIDENCE IN ASSESSING A TERMINATION CASE? BECAUSE I'M STILL UN-CLEAR WHETHER YOUR
ARGUMENT IS THAT THIS EVIDENCE SHOULDN'T COME IN THROUGH AN EXPERT BUT IT COULD BE ARGUED
TO THE FAMILY COURT JUDGE. I'M NOT SURE HOW YOU'RE FINDING THAT THIS COMES IN THROUGH
401 AS RELEVANT BUT NOT AS PART OF THE FACTORS. JOHN A. ALBRIGHT: I'M TRYING
TO MAKE THE DISTINCTION BETWEEN EXPERT BONDING EVALUATIONS, COMPARATIVE -- AS BROADLY
AND ENCOMPASSING THE TYPE OF EVALUATION THAT I TRIED TO PROVIDE A SNAPSHOT OF WITHIN
THE AMICI RESPONSE BRIEFS THAT I FILED WITH THE COURT. THESE EVALUATIONS COULD BE ANYWHERE
FROM 30 MINUTES TO AN HOUR AND THEN WE ALLOW AN EXPERT TO BASICALLY COME IN AND OPINE
ON HOW STRONG THAT RELATIONSHIP IS WITH THE FOSTER CAREGIVERS AND THE NATURAL PARENTS.
I'M SAYING THAT UNDER THE NEW TEST, THE PLAIN TERMS OF THE NEW A TEST AND THE
COMMON LAW, THAT'S OUT. JUSTICE PIERRE-LOUIS: I'M SORRY. WHAT WAS THE --
YOU SAID YOU WERE MAKING A DISTINCTION BETWEEN THE EXPERT BONDING EVALUATIONS AND?
JOHN A. ALBRIGHT: EVIDENCE OF THE PLACEMENT. A FACTUAL OBJECTIVE EVIDENCE CONCERNING
A PLACEMENT IS NOT OUT BECAUSE THE SPECIFIC HARM IDENTIFIED WITHIN PRONG TWO IS A SAFE
AND STABLE PLACEMENT. A SAFE, STABLE, PERMANENT PLACEMENT. THE INVERSE OF THAT IS IT
GOOD THAT THE CHILD IS IN A SAFE, STABLE, PERMANENT PLACEMENT. THAT'S ALL FAIR GAME.
JUSTICE PATTERSON: IS THIS ENTIRE CASE A CHALLENGE TO EXPERT TESTIMONY UNDER
RULE 702 RATHER THAN AN INTERPRETATION OF THE STATUTE? IS THIS WHAT WE'RE REALLY TALKING
ABOUT? BECAUSE CANDIDLY I DIDN'T SEE THAT DISTINCTION BEING MADE HERE AND THERE WASN'T
A CHALLENGE AS I UNDERSTAND IT AT THE TRIAL LEVEL TO THE ADMISSIBILITY OF EXPERT TESTIMONY
AS AN EVIDENTIARY MATTER. IS THAT WHAT WE'RE REALLY TALKING ABOUT HERE. BECAUSE FRANKLY
THAT'S NOT WHAT THE ISSUE PRESENTED APPEARS TO HAVE BEEN. JOHN A. ALBRIGHT:
WE'RE ASKING THE COURT TO REVERSE THE HOLDINGS OF THE APPELLATE DIVISION. SPECIFICALLY
THIS -- THE TOTALITY OF THE CIRCUMSTANCES TEST. WHICH -- JUSTICE PATTERSON:
RESPECTFULLY, COUNSEL, IF THE LEGISLATURE HAD INTENDED THAT THERE BE NO EVIDENCE OF THE
BOND BETWEEN THE CHILD AND THE RESOURCE PARENTS AND IF THE LEGISLATURE HYPOTHETICALLY
HAD SAID AND IN CONSIDERING THIS THE COURT SHALL NOT CONSIDER EVIDENCE OF THE BOND BETWEEN
THE RESOURCE PARENTS AND THE CHILD, THEN FACTUAL EVIDENCE, EXPERT EVIDENCE, ANY EVIDENCE
WOULD BE PRECLUDED. TO ME IT'S EVEN A GREATER STEP TO SAY THAT YOU'RE READING
INTO THE STATUTORY LANGUAGE SOME SORT OF DISTINCTION -- SOME SORT OF EXCLUSION OF
EXPERT TESTIMONY. AND THERE WAS NO -- PROCEDURALLY THE RIGHT WAY TO DO THAT IS A
CHALLENGE TO THE EXPERT TESTIMONY THAT DIDN'T HAPPEN IN THIS CASE. JOHN A.
ALBRIGHT: I BELIEVE THERE WAS A CHALLENGE. THERE WAS AN EXPERT PRESENTED BY THE DEFENSE
TO CHALLENGE THE -- I DON'T REMEMBER IF IT WAS THE STATE'S EXPERT OR -- DR. LEE.
JUSTICE PATTERSON: I'M NOT TALKING ABOUT PRESENTING ANOTHER EXPERT TO SAY HERE'S MY
EXPERT WHO'S GOING TO SAY THE BONDING EVIDENCE IS IN-CORRECT. I'M TALKING ABOUT YOU'RE
SAYING WE SHOULD BE EXCLUDING ACROSS THE BOARD IN ANY CASE EXPERT TESTIMONY ON AN ISSUE
THAT YOU CONCEDE FACTUAL TESTIMONY IS RELEVANT TO. AND WE'VE HAD NO -- THAT'S A 702
CHALLENGE. JOHN A. ALBRIGHT: WITH ALL DUE RESPECT, YOUR HONOR, I THINK YOUR HONOR
IS REALLY POINTING TO THE RESPONDENTS ARGUMENT WHICH IS AN ARGUMENT IN ESSENCE THE
LEGISLATURE DIDN'T WANT TO OMIT THIS PARTICULAR EVIDENCE. IT'S AN OMISSION ARGUMENT.
JUSTICE PATTERSON: NO, I'M NOT, FRANKLY, COUNSEL. I'M NOT AT ALL. I
UNDERSTAND THAT ARGUMENT, THE OMISSION ARGUMENT. WHAT I'M -- WHAT REALLY THIS ARGUMENT
SO FAR HAS CRYSTALLIZED THAT THERE IS -- THE CONTENTION YOU'RE MAKING IS NOT THAT THE
EVIDENCE PERIOD IS IRRELEVANT BUT THE EXPERT EVIDENCE OF BONDING SHOULD BE EXCLUDED.
BASED ON THE LEGISLATURE. NOW, THE LEGISLATURE SAYS ALL KINDS OF THINGS AND GIVES US
DIRECTION ON POLICY. IT COULD SAY IF IT WANTED TO THAT NO EVIDENCE OF THIS FACT OR EXPERT
OR ONE OR THE OTHER SHOULD BE CONSIDERED BY THE COURT. BUT IT HASN'T DONE THAT. SO --
JOHN A. ALBRIGHT: I UNDERSTAND, YOUR HONOR, THE POINT YOUR HONOR IS MAKING.
BUT BY THAT LOGIC, THE JULY 2021 AMENDMENTS WERE COMPLETELY MEANINGLESS. JUSTICE
PATTERSON: RESPECTFULLY, NOT AT ALL. BECAUSE PRONG TWO, AS YOU'VE TALKED ABOUT THE
IMPORTANCE OF PRONG TWO -- JOHN A. ALBRIGHT: IF WE'RE GOING TO ALLOW THE SAME
FOSTER CAREGIVER BONDING EVIDENCE IN THE FORM OF EXPERT TESTIMONY TO PROVE THAT A CHILD
WILL SUFFER SEVERE AND ENDURING HARM UNDER PRONG TWO, THAT'S IDENTICAL TO TRYING TO SHOW
THERE WILL BE A GOOD. BECAUSE THIS IS THE SAME EVIDENCE. JUSTICE PATTERSON: THE
DIVISION HAS THE BURDEN ON ALL FOUR PRONGS. AND YOU'VE CORRECTLY POINTED OUT THE LEGISLATURE
SAID ON PRONG TWO, YOU SAID, THEY MISS A PRONG, THEY -- THE PARENT RIGHTS ARE NOT TERMINATED.
SO THE LEGISLATURE TOOK IT OUT OF PRONG TWO VERY SIGNIFICANT. JUSTICE FASCIALE:
AND IT'S NOT THE SAME. PRONGS TWO AND FOUR ARE TOTALLY DIFFERENT. BEFORE THE AMENDMENT,
THE JUDGE HAD TO MAKE A FINDING THAT THE BIOLOGICAL PARENT HARMED THE CHILD. AND PART
OF THAT FINDING INCLUDED WHETHER REMOVAL OF THE CHILD FROM THE RESOURCE PARENT WOULD CREATE
ENDURING HARM. BECAUSE THE LEGISLATURE DELETED THAT SECOND SENTENCE OF PRONG TWO DOES NOT
MEAN THAT THE FAMILY PART JUDGE CANNOT CONSIDER THE BOND RELATIONSHIP BETWEEN THE CHILD
THAT'S BEEN WITH THE RESOURCE PARENT FOR FOUR YEARS AND THRIVING WHEN DETERMINING WHETHER
TERMINATION OF PARENT RIGHTS WILL DO MORE HARM THAN GOOD. IF I'M THE FAMILY
PART JUDGE WHO'S GOT THAT CASE AND THE DAG FOR THE DIVISION AND THE LAW GUARDIAN HAVE
THESE EXPERTS THAT HAVE DONE BONDING EVALUATIONS, IF I'M TRYING TO REACH A CONCLUSION
BASED ON THE BEST INTEREST OF THE CHILD, I WANT TO HEAR FROM THOSE EXPERTS IN WHAT WAY
WILL REMOVAL OF THE CHILD FROM THE RESOURCE PARENT AFFECT MY FINDING AS TO WHETHER
TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD. THEY'RE TOTALLY DIFFERENT.
THE SAME THING ON PRONG THREE. BEFORE THE AMENDMENT, IF TERMINATION OF PARENTAL RIGHTS
WAS FEASIBLE OR LIKELY, WE NEVER CONSIDERED KINSHIP LEGAL GUARDIAN. NOW OF COURSE IT'S
DIFFERENT, WE CAN STILL CONSIDER KINSHIP LEGAL GUARDIANSHIP. BUT THAT DOESN'T MEAN THAT
AS TO PRONG FOUR WE CAN'T CONSIDER THE BONDING RELATIONSHIP BETWEEN THE CHILD AND THE
RESOURCE PARENTS. LIKE I SAY, WHO'S THRIVING, WHO'S DOING WELL. JOHN A.
ALBRIGHT: YOUR HONOR, IT'S NOT EVEN -- WHAT WE'RE ASKING FOR IS REVERSAL OF THE APPELLATE
DIVISION's HOLDINGS AS I SAID. IT'S NOT EVEN A MATTER OF WHAT THE FAMILY PART JUDGE WOULD
LIKE TO OR SHOULD C THE APPELLATE DIVISION's HOLDING GOES FAR BEYOND THAT AND SAYS THE
COURTS MUST CONSIDER. JUSTICE FASCIALE: MUST CONSIDER WHAT?
JOHN A. ALBRIGHT: THE SAME EVIDENCE THAT WAS DELETED FROM PRONG TWO. JUSTICE
FASCIALE: AS TO PRONG FOUR? JOHN A. ALBRIGHT: YES. CHIEF JUSTICE
RABNER: BUT YOU'RE POINT IS IN GIVING GUIDANCE IN THE COURSE OF THIS OPINION, WE SHOULD
STATE THIS EVIDENCE MAY NOT BE CONSIDERED AT ALL IN THE CALCULUS. HARM FROM SEPARATION
FROM A FOSTER OR A RESOURCE PARENT MAY NOT BE CONSIDERED IN ANY WAY UNDER THE FOUR PRONGS.
JOHN A. ALBRIGHT: WE'RE ASKING FOR THE SAME THING FROM THE PRACTICAL STANDPOINT
OF WE'RE ASKING THE APPELLATE DIVISION's TOTALITY OF THE CIRCUMSTANCES TEST WHICH REQUIRES
COURTS AS ALMOST AN ELEMENT OF THE BEST INTEREST TEST, IT'S MANDATORY RATHER THAN --
CHIEF JUSTICE RABNER: PUT THAT TO ONE SIDE FOR JUST A MOMENT. I'M TRYING TO ASK
FOR YOUR ASSISTANCE IN WHAT GUIDANCE WE SHOULD AFFIRMATIVELY GIVE. HAVE I MISSTATED YOUR
POSITION? JOHN A. ALBRIGHT: NO. I THINK WHAT I JUST WANT TO EMPHASIZE IS THAT
THE COURT IN G L AND I S AND C M, IT DEPENDS ON THE FACTS AND CIRCUMSTANCES OF THE CASE,
OBVIOUSLY. BUT IN THOSE CASES, THE COURT SAID IT'S A COMMON SENSE NOTION THAT THIS BONDING
WILL OCCUR. SO ONCE AN EXPERT COMES IN TO -- IT BECOMES CUMULATIVE, PREJUDICIAL AND IT'S
-- AND THIS WAS REALLY L S AND J -- JUSTICE PATTERSON: IF A JUDGE WERE TO
MAKE A FINDING WITHOUT THE ASSISTANCE OF AN EXPERT AND SAID, HEY, COUNSEL, IT'S COMMON
SENSE THAT A CHILD THAT'S BEEN WITH A RESOURCE PARENT FOR FOUR YEARS IS GOING TO BE BONDED
AND THEREFORE I SEE THAT THE HARM WOULD NOT OUTWEIGH THE -- UNDER THE FOURTH PRONG, YOU
WOULD BE STANDING UP AND SAYING, YOUR HONOR, YOU'RE BASING THIS ON YOUR PERSONAL
EXPERIENCE OR SOMETHING YOU READ OR SOMETHING BUT THERE'S BEEN NO EXPERT HERE. JOHN
A. ALBRIGHT: NO, THAT'S SIMPLY NOT SOMETHING THAT'S BEYOND THE CAN OF THE AVERAGE JUROR
TO UNDERSTAND THAT AND THAT'S REALLY THE TAKE AWAY AS I'VE BEEN SAYING FROM G L AND I
S AND C M. JUSTICE WAINER APTER: WHERE DO YOU TAKE THAT FROM THE TESHTH OF THE
STULT. I HEARD YOU SAY BEFORE WE DON'T HAVE TO LOOK TO LEGISLATIVE HISTORY. I THOUGHT
I WAS WITH YOU OVEN THE IMPORTANCE OF G WHERE IT SAYS IT IS THEREFORE NECESSARY CAREGIVERS
AND ENSURE FOCUS ON PARENTS' FITNESS AS OPPOSED TO CONSIDERING THE IMPACT OF SEVERING
THE CHILD'S RELATIONSHIP WITH THE RESOURCE FAMILY PARENTS. I THOUGHT YOU WERE ARGUING
THAT THE WORDS AS OPPOSED TO WAS THE LEGISLATURE SAYING YOU CAN NO LONGER CONSIDER THE
IMPACT OF SEVERING THE CHILD'S RELATIONSHIP WITH THE RESOURCE FAMILY PARENTS. BUT NOW
IT SOUNDS TO ME LIKE YOU'RE NOT SAYING THAT AND YOU'RE SAYING THAT COURTS CAN STILL CONSIDER
THE IMPACT OF SEVERING THE CHILD'S RELATIONSHIP WITH THE RESOURCE FAMILY PARENTS. THEY
JUST CAN'T DO SO WITH EXPERT TESTIMONY. THEY HAVE TO DO SO BASED ON THEIR OWN KNOWLEDGE
OF COMMON SENSE AND WITH FACT TESTIMONY. WHERE DO YOU GET THAT FROM THE LANGUAGE
OF THE STATUTE THAT IT'S THE EXPERT TESTIMONY THAT'S THE PROBLEM AND NOT THE AS OPPOSED
TO CONSIDERING THE IMPACT OF SEVERING THE CHILD'S RELATIONSHIP WITH THE RESOURCE FAMILY
PARENTS AT ALL? JOHN A. ALBRIGHT: I THINK I'VE JUST BEEN FOCUSING ON THE
EXPERT TESTIMONY BECAUSE THAT'S SO CLEARLY LINKED TO THE FORMER PRONG TWO. I THINK WHAT
YOUR HONOR IS POINTING TO UNDER G OF CHAPTER 154 SUPPORTS THE CONCLUSION THAT WE DON'T
WANT TO CONSIDER UNDER A BETTER INTEREST TEST THIS RELATIONSHIP WITH FOSTER PARENTS AT
ALL. WE WANT TO FOCUS ON THE PARENTAL RELATIONSHIP BECAUSE THE HARM FROM DISTURBING
AND DESTROYING THAT RELATIONSHIP IS SO CATASTROPHIC, THAT'S REALLY WHAT THE WHOLE
FOURTH PRONG IS SUPPOSED TO BE FOCUSED ON AND I THINK THE FINDINGS AND DECLARATIONS TELL
US HOW TO READ THE BEST INTEREST TEST. THEY ARE THE LAW. THE FINDINGS AND DECLARATIONS
ARE THE LAW. THEY SUPERSEDE THE LEGISLATIVE HISTORY THAT THE APPELLATE DIVISION USED
TO SORT OF COME UP WITH THIS NEW TOTALITY OF THE CIRCUMSTANCES TEST WHICH IT'S NEVER BEEN
CALLED IN THE CASE LAW BEFORE AS FAR AS I CAN TELL. JUSTICE WAINER APTER:
SO MY QUESTION WAS, DO THE LEGISLATIVE FINDINGS SAY YOU CAN STILL CONSIDER THE IMPACT
OF SEVERING THE CHILD'S RELATIONSHIP WITH THE RESOURCE FAMILY PARENTS BUT JUST NOT THROUGH
EXPERT TESTIMONY WHICH IS WHAT I THOUGHT YOU WERE SAYING TO JUSTICE PATTERSON AND JUSTICE
FASCIALE OR DO INSTEAD THE FINDINGS NOT TALK ABOUT EXPERT. WHERE DID WE GET THIS EXPERT
THING FROM OR ARE YOU SAYING NOW ACTUALLY IT IS ACCORDING TO THE FINDINGS AND IT CANNOT
BE CONSIDERED AT ALL. JOHN A. ALBRIGHT: I WANT TO BACK UP A LITTLE BIT,
BECAUSE I DON'T WANT TO CONFUSE THE RELATIONSHIP. IF WE'RE TALKING ABOUT FACT BASED TESTIMONY,
THE DIVISION IS USING TO TRY TO PROVE THE STRENGTH OF THE RELATIONSHIP BETWEEN THE
CHILD AND THE FOSTER PARENTS IS THE SAME TYPE OF EVIDENCE WE'VE NOW RE-MOVED FROM THE TEST.
SO I DON'T WANT TO -- I MAY HAVE BEEN CONFUSING THE COURT WITH JUST FOCUSING ON EXPERT
TESTIMONY BECAUSE THAT'S WHAT THE CASES REALLY DO IN TERMS OF THE SECOND PRONG. THAT'S
HOW EXPERT PARENT BONDING EVALUATIONS EVER MADE THEIR WAY INTO THE FOURTH PRONG. BECAUSE
THEY WERE NEVER ALLOWED IN THE SECOND PRONG AS AN ELEMENT OF A WAY FOR THE DIVISION TO
PROVE A CASE. HARM WAS PROVEN BY PROVING THAT THE RELATIONSHIP WAS SO GOOD IT WOULD BE
HARMFUL TO RE-MOVE THE CHILD FROM THE PLACEMENT. NOW WE'RE LEFT WITH UNDER PRONG TWO
THAT SPECIFICALLY LISTED HARMS THAT I MENTIONED INITIALLY, A SAFE AND STABLE PLACEMENT
IS A GOOD THAT CAN BE CONSIDERED CLEARLY BECAUSE IT SPECIFICALLY IS IN THE PLANE TEXT
OF THE STATUTE. SO WHETHER IT'S EXPERT TESTIMONY OR FACT TESTIMONY --
JUSTICE WAINER APTER: BUT IT JUST SAYS THE PARENT IS UN-WILLING OR UNABLE TO ELIMINATE
THE HARM FACING THE CHILD. IT DOESN'T SAY AND A FOSTER OR RESOURCE PARENT COULD OR COULD NOT
PROVIDE A SAFE OR STABLE HOME FOR THE CHILD, RIGHT? WE'RE ONLY TALKING ABOUT THE PARENT.
JOHN A. ALBRIGHT: THE HARM IS THAT THE PARENT NOT PROVIDE THAT. THAT'S A
HARM ATTRIBUTABLE UNDER THE SECOND PRONG TO THE PARENT. JUSTICE WAINER APTER:
IT'S NOT ATTRIBUTABLE. IT IS THAT THE PARENT CANNOT PROVIDE A SAFE AND STABLE HOME.
JOHN A. ALBRIGHT: THE WHOLE TEST IS CONDUCT BASED. SO THAT IS A HARM THAT'S
STILL ATTRIBUTABLE UNDER PRONG TWO TO THE PARENT. THE FAILURE TO PROVIDE A SAFE AND STABLE
HOME. IF UNDER PRONG ONE THE PARENT CHILD RELATIONSHIP IS ACTUALLY HARMING THE CHILD,
THAT'S WHAT THE DIVISION IS TRYING TO PROVE UNDER PRONG ONE. THE IN-SERS OF THAT IS THE
ELIMINATION OR THE PROTECTION FROM THOSE HARMS. CHIEF JUSTICE RABNER: COUNSEL,
WE'RE TRYING COLLECTIVELY TO GET A SENSE OF WHAT YOUR ARGUMENT IS AND I THINK THERE'S
A BIT OF CONFUSION HERE. SO CLARIFY FOR US. YOUR ORIGINAL POSITION WAS EVIDENCE OF
HARM TO THE CHILD FROM SEVERING THE RELATIONSHIP WITH THE FOSTER OR RESOURCE PARENT MAY NOT
BE CONSIDERED. ARE YOU TELLING US THAT NO EVIDENCE, WHETHER EXPERT, WHETHER INFERENTIAL
FINDINGS BY THE JUDGE, FACT EVIDENCE OF ANY SORT IS OFF LIMITS BASED ON YOUR POSITION?
JOHN A. ALBRIGHT: YES. UNLESS WE'RE TALKING ABOUT EVIDENCE -- UNLESS WE'RE
TALKING ABOUT EVIDENCE PERTAINING TO THE PLACEMENT, THAT IS PERMISSIBLE. IF WE'RE
TALKING ABOUT FACTUAL EVIDENCE CONCERNING THE SAFETY AND STABILITY OF PLACEMENT, THE
ELIMINATION OF THOSE IDENTIFYING HARMS UNDER PRONG TWO -- CHIEF JUSTICE RABNER:
NO EXPERT TESTIMONY, NO FACTUAL TESTIMONY, NO INFERENCES DRAWN FROM FACTS WITH RESPECT
TO THE HARM ENDING THE RELATIONSHIP WITH THE RESOURCE PARENT. JOHN A.
ALBRIGHT: AFTER THE 2021 AMENDMENTS, WE SHOULD NOT BE ALLOWING -- CHIEF JUSTICE
RABNER: OKAY. ALBRIGHT -- FACT WITNESSES OR EXPERT WITNESSES TO OFFER OPINION TESTIMONY
ABOUT THE STRENGTH OF THAT BOND OR ATTACHMENT, BECAUSE THOSE THEORIES HAVE CLEARLY BEEN
REJECTED BY THE LEGISLATURE THROUGH THESE AMENDMENTS. JUSTICE PIERRE-LOUIS:
ARE YOU SAYING THE ONLY EVIDENCE THAT SHOULD AND CAN COME IN UNDER THE AMENDMENTS ARE
JUST OBJECTIVE FACTS ABOUT THE PLACEMENT? IS THAT WHAT YOU'RE SAYING? JOHN A.
ALBRIGHT: YES. JUSTICE PIERRE-LOUIS: THAT THE CHILD WAS PLACED WITH THIS
INDIVIDUAL ON THIS, HAS BEEN THERE FOR THIS AMOUNT OF TIME AND THAT'S IT? JOHN A.
ALBRIGHT: THAT CAN BE -- CLEARLY THAT CAN BE ESTABLISHED BY THE FOSTER PARENTS THEMSELVES.
THAT WOULD BE THE MOST POWERFUL -- PROBABLY THE MOST POWERFUL SOURCE OF EVIDENCE THAT
THE TRIAL COURT WOULD LIKE TO HEAR ON THIS PLACEMENT. JUSTICE PATTERSON:
BUT THEY'RE LIMITED TO -- LET'S SAY THE CHILD WAS PLACED. IT CONTINUES TO THIS DAY.
IT'S BEEN FOUR YEARS. WE LIVE AT X ADDRESS. THAT'S WHO WE ARE. WE'RE RESOURCE PARENTS.
JOHN A. ALBRIGHT: I DON'T THINK I WOULD GO QUITE THAT FAR. JUSTICE
PATTERSON: ARE THEY ALLOWED TO TESTIFY ABOUT THE QUALITY, THE EDUCATIONAL OPPORTUNITIES
THE CHILD HAS, IF THE CHILD HAS A DISABILITY HOW THEY'RE ADDRESSING THEIR DISABILITY,
THEIR DAY-TO-DAY ROUTINE WITH THE CHILD, THE CHILD'S EXPRESSION OF AFFECTION FOR THEM?
AND THEIR VIEW WITH RESPECT TO THE QUALITY OF THE RELATIONSHIP THAT THEY HAVE BUILT UP
WITH THIS CHILD? ARE THEY ALLOWED TO TESTIFY ABOUT ALL OF THAT? JOHN A.
ALBRIGHT: I THINK ALL THAT IS FAIR, YOUR HONOR. ALL THAT. BECAUSE THAT WITNESS IS TESTIFYING
BASED ON THEIR PERSONAL FIRSTHAND KNOWLEDGE. JUSTICE PATTERSON: THAT'S FACT
VERSUS EXPERT TESTIMONY. JUSTICE WAINER APTER: CORRECT. WHAT DOES THAT HAVE
TO DO WITH G? ALL IT SAYS IS CONSIDERING THE IMPACT OF SEVERING THE CHILD'S RELATIONSHIP
WITH THE RESOURCE FAMILY's PARENTS. YOU JUST SAID THEY COULD TESTIFY TO THAT. THAT THE
RELATIONSHIP IS SO CLOSE. JOHN A. ALBRIGHT: THE QUALITY OF THE RELATIONSHIP
IS SOMETHING -- THAT IS SOMETHING THAT THE FAMILY PART JUDGE IS -- THAT'S THE PRIMARY
THING HE'S TRYING TO DECIDE OR ONE OF THE PRIMARY THINGS HE'S TRYING TO DECIDE IN THE
CASE. JUSTICE NORIEGA: JUSTICE NORIEGA: WITH THE FOSTER FAMILY
OR THE PRIMARY PARENT? OR BOTH? LET ME ASK YOU A QUESTION. JUST TO FRAME THIS, AND
I'M GOING TO TRY TO BE VERY DIRECT ABOUT THIS. IT SEEMS TO ME THAT YOUR POSITION IS THAT
THE 2021 AMENDMENT RE-MOVED THE FOSTER FAMILY CONSIDERATION AND THE HARM CAUSED BY THAT
SEPARATION BECAUSE THE COMPARISON OF THE HARM THAT THE PARENT MAY HAVE POSSIBLY BEEN
CAUSING VERSUS THE LACK OF HARM THAT EXISTED WITH -- AND THE COUPLING WITH THE FOSTER FAMILY,
THAT DUTY WALT COULDN'T EXIST FAIRLY FOR PURPOSES OF THE PARENT. IS THAT FAIR TO SAY?
JOHN A. ALBRIGHT: YES. JUSTICE NORIEGA: SO LIKE A SILVER BULLET.
THE MINUTE YOU BROUGHT THOSE TWO PIECES OF EVIDENCE TOGETHER THE PARENT WOULD ALWAYS
LOSE. SO NOW IT'S GONE. NOW I THINK THE QUESTION IS, HOW FAR ARE YOU TRYING TO HAVE THIS
COURT GO TO KEEP THAT EVIDENCE OUT OF THE CASE? AND I THINK THAT'S WHAT WE'RE STRUGGLING
WITH. IT SEEMS LIKE THERE'S SOME PIECES YOU'RE WILLING TO ALLOW IN AND SOME PIECES YOU'RE
WILLING TO SAY NEED TO BE EXCLUDED. WHAT IS YOUR POSITION ON HOW FAR THE LEGISLATURE
INTENDED TO GO BY RE-MOVING THIS PROVISION FROM TWO AND WHETHER THAT APPLIED TO ANYWHERE
ELSE IN THE STATUTE MSHGS THE TEST? JOHN A. ALBRIGHT: CERTAINLY TO PRONG
FOUR. WHAT I'M GETTING AT IS THAT THE LAURIE MOVE FROM CONSIDERATION UNDER ANY PRONG
OF THE TEST THE QUALITY OF THE RELATIONSHIP -- A SUBJECTIVE ASSESSMENT OF THE QUALITY
OF THAT RELATIONSHIP. JUSTICE NORIEGA: TO JUSTICE PATTERSON's QUESTION --
JOHN A. ALBRIGHT: THOSE ARE ALL FACT BASED INQUIRIES. THE LENGTH OF THE
PLACEMENT. WHAT THE FOSTER PARENTS ARE DOING WITH THE CHILD. THE FOSTER PARENTS OWN
OBSERVATIONS AND -- THOSE ARE ALL THINGS THAT ARE SUBJECT TO THE FAMILY PART JUDGE'S
CREDIBILITY ASSESSMENTS. JUSTICE PATTERSON: OPEN THE DIRECT BY YOUR
ADVERSARY, THEY ASK, TELL US, DOES EVER SAY HOW MUCH HE LOVES YOU. YES. AND HE DID THAT
JUST THIS MORNING AND LET ME EXPLAIN. THAT'S FACT BASED. THAT'S ALLOWED? JOHN
A. ALBRIGHT: YES. BECAUSE THAT'S -- THAT'S A FACTUAL MATTER. THAT'S SOMETHING THAT DID
OR DIDN'T OCCUR. THAT'S ENTIRELY DIFFERENT FROM AN EXPERT COMING IN AND SAYING THAT I
WATCHED THE FOSTER PARENTS AND THE CHILD IN MY OFFICE FOR AN HOUR AND THEY SEEM -- IT
SEEMED LIKE THEY REALLY LOVED EACH OTHER. THAT'S AN ENTIRELY DIFFERENT SCENARIO.
CHIEF JUSTICE RABNER: CAN THE JUDGE INFER FROM THAT THERE WOULD BE HARM IF WE SEVERED
THAT RELATIONSHIP OR ARE WE LIMITED JUST TO THE FACT? JOHN A. ALBRIGHT: WITH
ALL DUE RESPECT, THEN YOU'RE SIMPLY MOVING WHAT WAS BANNED FROM PRONG TWO TO PRONG FOUR.
JUSTICE WAINER APTER: THEN WHAT CAN THE JUDGE CONSIDER IT FOR? YOU SAID YES
THE JUDGE CAN CONSIDER THIS FACTUAL INFORMATION ABOUT THE RELATIONSHIP WITH RESOURCE PARENTS.
IF IT'S NOT IN RELATION TO FACTORS ONE, TWO, THREE OR FOUR, WHAT IS IT RELEVANT TO? YOU
SAID IT'S NOT A LRG GER TEST. IT'S JUST THESE FOUR FACTORS BUT IT'S NOT RE-LATED TO ANY
OF THESE FOUR FACTORS. SO WHAT IS IT RELEVANT TO. JOHN A. ALBRIGHT: AGAIN
I WOULD GO BACK TO PRONGS ONE AND TWO WHAT'S EXPLICITLY LISTED. IT'S THE NATURE OF THE
PLACEMENT. FACTS SURROUNDING THE NATURE OF THE PLACEMENT RELATES DIRECTLY TO PROTECTION OF
THE CHILD FROM PARENTAL UN-FITNESS, CONDUCT BY THE PARENT THAT'S HARMING THE CHILD.
JUSTICE WAINER APTER: WHERE? I'M LOOKING AT THE STATUTE. WHICH -- ARE YOU LOOKING AT PRONG
ONE OR TWO? JOHN A. ALBRIGHT: PRONG ONE IS THAT THE PARENTAL RELATIONSHIP
HAS ENDANGERINGED THE HEALTH AND SAFETY OF THE CHILD. JUSTICE WAINER APTER:
CORRECT. BUT THAT HAS NOTHING TO DO WITH WHETHER OR NOT THE CHILD SAID THEY LOVED THE
RESOURCE PARENT. DOES IT? I'M NOT UNDERSTANDING. JOHN A. ALBRIGHT:
UNDER PRONG TWO -- I THINK YOUR HONOR IS ASKING ME TO SORT OF CATEGORIZE VARIOUS TYPES OF
EVIDENCE AND WHERE THEY MIGHT FIT IN. JUSTICE WAINER APTER: BECAUSE YOU SAID
THAT EVIDENCE -- THAT THE RESOURCE PARENT CAN TESTIFY, YES , I LOVE THE CHILD VERY MUCH AND
THE CHILD HAS SAID THE CHILD LOVES ME. YOU SAID THAT'S OKAY. SO THE QUALITY OF THE
RELATIONSHIP WITH THE RESOURCE PARENTS IS OKAY. I'M JUST TRYING TO FIGURE OUT WHY THAT IS
OKAY. JOHN A. ALBRIGHT: I DIDN'T SAY THE QUALITY OF THE RELATIONSHIP. THOSE
ARE OBSERVATIONS -- THAT'S OBSERVATIONAL FACT BASED TESTIMONY FROM A FOSTER PARENT.
JUSTICE WAINER APTER: THAT WOULD BE RELEVANT TO WHICH PRONG. JOHN A.
ALBRIGHT: UNDER PRONG FOUR. JUSTICE WAINER APTER: SO UNDER PRONG FOUR YOU CAN
LEARN EVIDENCE ABOUT THE RESOURCE PARENT RELATIONSHIP? JOHN A. ALBRIGHT:
THE NATURE OF THE PLACEMENT AGAIN, JUST GOING BACK TO PRONG TWO, WE'RE TALKING ABOUT THE
ELIMINATION OF A SPECIFIC HARM. THE WHOLE FOCUS OF PRONG FOUR IS THE HARM THAT WILL RESULT
FROM THE PARENTAL RELATIONSHIPS DESTRUCTION. THERE'S NO MENTION OF THAT, BY THE WAY, IN
THIS COURT'S DECISION IN THIS CASE. I WANTED TO SAY A WORD, IF I COULD, ABOUT THE TRIAL
COURT DECISION BECAUSE IT'S SO BRIEF. JUSTICE SOLOMON: CAN I BACK YOU UP FOR A
MINUTE BECAUSE I FEEL LIKE WE'RE GOING SIDEWAYS. THIS IS A TERMINATION OF PARENTAL RIGHTS
CASE. WHETHER WE SHOULD TERMINATE THE PARENTAL RIGHTS TO THIS CHILD. THAT'S ALL IT IS.
THE STATUTE WE'RE TALKING ABOUT WAS PART OF A STATUTE THAT WAS INTENDED TO FAVOR KINSHIP
LEGAL GUARDIANSHIP OVER NON-FAMILY PLACEMENTS. AND THERE'S A WHOLE SERIES OF ARTICLES
-- ARTICLES. A WHOLE SERIES OF AMENDMENTS THAT GO INTO THAT. THIS BEING ONE OF THEM.
AND YOU TALK ABOUT THE PREAMBLE, THE FINDINGS AS CONTROLLING OR INDICATING WHAT THIS
LEGISLATION DOES. BUT IT DOESN'T DO ANY OF THAT. THE LEGISLATION WAS SIMPLY INTENDING
TO PROMOTE KIN SHOIP LEGAL GUARDIANSHIP AS A PLACEMENT AND NOTHING MORE, NOTHING LESS.
AND DIDN'T WANT THE RELATIONSHIP -- AND THERE'S DISCUSSION ALL OVER THE LEGISLATIVE HISTORY
AND I THINK YOU INFER FROM THE PREAMBLE TOO. DIDN'T WANT PETITIONS TO TESTIMONY 98
PARENTAL RIGHTS TO BE BASED UPON THE RELATIONSHIP BETWEEN THE FOSTER PARENT AND THE CHILD,
PERIOD, END OF STORY, THAT'S IT. AND THE LEGISLATORS WHO DRAFTED IT SAID THAT. AND I
THINK THE PREAMBLE INDICATES THAT. AND THERE'S NOTHING TO DO WITH THE KIND OF EVIDENCE
YOU'RE NOW TALKING ABOUT AND FRANKLY I DON'T THINK BUT YOU CAN EXPLAIN TO ME WHY I'M
WRONG HAVE ANYTHING TO DO WITH WHAT THE PETITIONER's CASE IS ALL ABOUT. IT DOESN'T
TALK ABOUT ANY OF THAT. IT JUST DOESN'T WANT THIS TO BE THE REASON, BASIS TO BEGIN A PETITION
FOR TERMINATION OF PARENTAL RIGHTS AND NOT PUT THE CHILD AT LEAST IN RELATIVES HANDS VERSUS
THIRD PARTY UN-KNOWN INDIVIDUALS HANDS. WHAT DOES THAT HAVE TO DO WITH WHETHER IT CAN BE
CONSIDERED UNDER PRONG FOUR? THAT'S NOT ANYWHERE IN ANY STATUTE, ANY AMENDMENT OR ANY
OF THE LEGISLATIVE HISTORY, WHICH I'M HAPPY TO READ TO YOU. WE JUST WANT TO MAKE IT CLEAR
IN THE STATUTE THAT THE JUDGE SHOULD BE CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES
IN EVERY CASE IN EVALUATING THE FACTS AND MAKING PARTICULARIZED DECISIONS BASED ON THE
BEST INTEREST OF THE CHILD. THEY TEND TO FOCUS ON THE HARM OF SEPARATING THE FOSTER
FAMILY SOMETIMES AT THE EXCLUSION OF OTHER FACTORS. I MEAN, THAT'S ALL THIS
WAS ABOUT. THAT SHOULDN'T BE THE BASIS FOR BEGINNING A PETITION TO TERMINATE PARJT
RIGHTS. NEVER DID THEY SAY ANYWHERE, NOT IN THE PREAMBLE, NOT IN THE HISTORY, NOT IN THE
STATUTE, THAT IT'S NOT TO BE CONSIDERED AS PART OF THE BEST INTEREST OF THE CHILD ANALYSIS
AND THAT'S ALL THIS CASE IS ABOUT. TELL ME WHY I'M WRONG. JOHN A. ALBRIGHT:
WITH ALL DUE RESPECT, YOUR HONOR, G OF THE FINDINGS AND DECLARATIONS SAY WE WANT TO
ENSURE FOCUS ON PARENTS FITNESS AND THE BENEFITS OF PRESERVING THE BIRTH CHILD RELATIONSHIP
AS OPPOSED TO CONSIDERING THE IMPACT OF SEVERING THE CHILD'S RELATIONSHIP WITH THE RESOURCE
FAMILY PARENTS. JUSTICE SOLOMON: THEY DIDN'T WANT THE COMPETITIVE ANALYSIS.
AS ALL OVER -- THE FINDINGS, THE LEGISLATIVE HISTORY, EVERYTHING. THEY DIDN'T WANT, ARE
THEY BETTER OFF WITH ONE VERSUS BETTER OFF WITH THE OTHER. THEY DIDN'T WANT THE COMPARATIVE
ANALYSIS. THAT'S NOT THE ISSUE HERE. THERE WAS NO COMPARATIVE ANALYSIS. ALL THE JUDGE
SAID WAS THEY NEED A PERMANENT PLACEMENT. THERE IS NO BASIS TO CONTINUE THE PARENTAL
RELATIONSHIP. THEY NEED A PERMANENT PLACEMENT. SO THEY CONSIDERED IT UNDER PRONG FOUR.
CHIEF JUSTICE RABNER: MR. ALBRIGHT I WANT YOU TO RESPOND AND TRY TO DRAW YOUR
ARGUMENT TO A CLOSE. WE'RE AT ABOUT 45 MINUTES. JOHN A. ALBRIGHT: YES, YOUR HONOR.
SINCE YOU MENTIONED THE -- I WANTED TO SAY A WORD ABOUT THE TRIAL COURTS DECISION BECAUSE
IT'S SO SHORT. AND IT'S THAT, QUOTE, THE TESTIMONY IS CLEAR THAT THE CHILDREN THAT ARE
IN PRE-ADOPT HOMES WOULD HAVE SIGNIFICANT HARM. I ALSO BELIEVE THE CHILDREN NEED PLACEMENT
AND THIS CASE WOULD GO ON FOREVER. I THINK THAT'S A HARM. I THINK THE CHILDREN ARE NOW
IN SELECT HOME ADOPTIONS. IN THIS CASE THERE'S NO WAY I CAN CONCLUDE THE TERMINATION
WILL DO MORE HARM THAN GOOD. THAT'S IN-DISTINGUISHABLE, I SUBMIT, FROM THE
BACKWARD CONCLUSION THAT THE HARM RESULTING GOOD THAT WAS CONDEMNED BY THIS COURT IN I
S AND C M. AND THEN THE APPELLATE DIVISION RE-LIED UPON IT AND MADE THE SAME ERROR, I
WOULD SUBMIT, ON PRONG FOUR. IN RELYING ON THE TRIAL COURT'S CONCLUSION THAT QUOTE AT
THE TIME THE RESOURCE MRAMENTS WOULD NOT RESULT IN A GREATER HARM THAN GOOD, END QUOTE.
SO WE HAVE PRECISELY THE BACKWARDS ANALYSIS THAT WAS CONDEMNED BY THE COURT
IN I S AND C M THAT THE LOGICAL CONCLUSION, AGAIN, IF IT'S THE ONLY POINT I MAKE BEFORE
THE COURT TODAY, THE END OF THE ROAD WITH CONSIDERATION OF THE FOSTER PARENT
RELATIONSHIP WITHIN PRONG FOUR IS ALWAYS THAT IT BECOMES A BETTER INTEREST TEST UNDER A
W AND THAT WAS PROHIBITED BY A W GOING AS FAR BACK AS BABY M. JUSTICE FASCIALE:
REAL QUICKLY? WHAT DOES THE FAMILY PART JUDGE DO THEN WITH THE COURT-APPOINTED SPECIAL
ATTORNEY THAT SHE APPOINTS TO REPORT EXACTLY WHAT'S GOING ON BETWEEN THE CHILD AND THE
RESOURCE PARENTS FOR THE FOUR YEARS PRECEDING THE TRIAL? HOW DOES THAT JUDGE CONSIDER
THAT TESTIMONY AT TRIAL AS TO PRONG FOUR? JOHN A. ALBRIGHT: I THINK -- AGAIN,
I THINK WE COVERED THAT GROUND. THAT -- TO THE EXTENT IT'S CONCERNING THE NATURE OF THE
PLACEMENT, IS IT A PERMANENT PLACEMENT, IS IT SOMETHING THAT'S GOING TO ELIMINATE THE
HARMS. JUSTICE FASCIALE: THE CHILD'S BEEN IN THE RESOURCE HOME FOR FOUR YEARS.
AND THE REPRESENTATIVE IS JUST TESTIFYING AT THE TRIAL. JOHN A. ALBRIGHT:
I WOULD SUBMIT THAT TESTIMONY IS MOST LIKELY CUMULATIVE. HIGHLY PREJUDICIAL --
JUSTICE FASCIALE: I CAN'T USE A REPRESENTATIVE ANYMORE? JOHN A. ALBRIGHT:
I'M NOT SUGGESTING THAT KAS IS A SHOULD BE ABOLISHED. JUST CONCERNING THE TYPE OF
EVIDENCE SUBMITTED, I THINK THAT'S CLEARLY SUBJECTIVE. IF IT GETS INTO -- THE KAS IS A
WORKERS OBSERVATIONS I THINK THAT'S FAIR GAME. ONCE IT TURNS INTO THE SUBJECTIVE THIS
PLACEMENT, THESE PARENTS ARE BETTER THAN THE NATURAL PARENT, WE NOW HAVE A PROHIBITED A
W BETTER INTEREST ASSESSMENT. JUSTICE SOLOMON: I DON'T DISAGREE. THAT IS
NOT EVIDENCE OF PARENTAL FITNESS AND RELATIONSHIP WITH A FOSTER PARENT IS NOT EVIDENCE
OF PARENTAL FITNESS BUT IT IS RELEVANT TO WHAT IS IN THE BEST INTEREST OF THE CHILD.
UNDER PRONG FOUR IT COMES IN. IT DOESN'T COME IN AS -- AS YOU'RE ARGUING, I AGREE WITH
THAT, UNDER PARENT FITNESS. BUT IT COMES IN. JUSTICE FASCIALE: BECAUSE IT
DOESN'T REALLY COME IN THROUGH THE RESOURCE PARENTS. WHEN I USED TO DO THESE TRIALS I
NEVER HAD A RESOURCE PARENT TESTIFY AT A TERMINATION OF PARENTAL RIGHTS TRIAL. IT
COMES IN THROUGH THE CASE WORKER, THE CASE NOTES, THE KAS KA REPRESENTATIVE, THE BONDING
EVALUATIONS. ALL OF THIS IS CONSIDERED WHEN EVALUATING PRONG FOUR. JOHN A.
ALBRIGHT: YES. PRIOR TO THE AMENDMENTS. JUSTICE FASCIALE: EVEN AFTER THE
AMENDMENTS. JOHN A. ALBRIGHT: THE WAY THE COMMON LAW DEVELOPED, THE CASES
THAT THE COURT DECIDED ALLOWED COMPARATIVE BONDING EVIDENCE INTO PRONG FOUR SO WE'RE
GOING TO COMPARE THE NATURAL PARENT RELATIONSHIP TO THE CHILD AND THE FOSTER PARENT TO
THE CHILD RELATIONSHIP SPECIFICALLY BECAUSE IT WAS ALLOWED UNDER PRONG TWO AS A HARM.
THAT ONLY EVER ENTERED -- THAT WAS THE WHOLE POINT OF THE -- JUSTICE SOLOMON:
WHERE IN THE WORLD DID THAT HAPPEN HERE? WHERE WAS THAT COMPARATIVE BONDING ANALYSIS?
I'M SORRY. CHIEF JUSTICE RABNER: WOULD YOU LIKE TO ANSWER THE QUESTION AND
THEN WE'RE GOING TO MOVE ON. JUSTICE SOLOMON: WHERE WAS THAT COMPARATIVE
BONDING ANALYSIS DONE HERE, BY THE TRIAL COURT OR THE APPELLATE DIVISION? JOHN A.
ALBRIGHT: IF I CAN JUST REFER TO THE COURT'S DECISION ONE MORE TIME. I WOULD SUGGEST
THAT IT WAS ENTIRELY -- THERE'S -- WHAT I WANTED TO SAY AND I NEVER DID IS ABOUT THE CHILDREN
IN THIS CASE, THERE'S FOUR, WHICH I SKIPPED OVER INITIALLY. THERE ARE FOUR CHILDREN.
AGES THREE AND A HALF TO EIGHT. CHIEF JUSTICE RABNER: COUNSEL, I'M SORRY.
PLEASE ANSWER THE QUESTION AND THEN WE'RE GOING TO MOVE ON. JOHN A. ALBRIGHT:
ALL I WAS GOING TO SAY ABOUT THAT, YOUR HONOR, IS THAT ONLY ONE OF THESE CHILDREN -- AN
TONIO, THE MIDDLE GIRL -- RECEIVED THE BONDING, THE COMPARATIVE BONDING EVALUATION IN THIS
CASE. THE ONLY THREE I'LL LEAVE TO THE DIVISION OF LAW GUARDIANS TO PROVIDE UPDATES ON.
BUT THE LAST THING WE KNOW ABOUT THOSE CHILDREN IS THEY WERE AFTER TRIAL PLACED INTO PRE-
ADOPT HOMES AS OF MAY 112022. AS FOR THE ONE CHILD, IT ENTIRELY RESTS ON A PROHIBITED
BONDING ANALYSIS UNDER PRONG FOUR T OTHER THREE WE HAVE A COMPENSATING BENEFIT PROBLEM
BECAUSE WE DON'T KNOW WHETHER THOSE CHILDREN WILL EVER BE ADOPTED AT LEAST BASED ON THE
PROVES AND THE CHIEF JUSTICE RABNER: MS. MCMANUS-SMITH. MS.
MCMANUS-SMITH: THANK YOU SHTHS YOUR HONOR'S. THE 2021 AMENDMENT ELIMINATE THE EVIDENCE
OF HARM FOR FOSTER PARENT BONDS FROM T P R TRIALS, WE BELIEVE ALTOGETHER, AND THAT IS
BECAUSE, ONE, WE BELIEVE THAT THE INTENT OF THE LEGISLATURE WAS SO AND, 2, THE AUTHORITY
TO CONSIDER SUCH EVIDENCE ABOUT FOSTER PARENT BONDING HARM IN PRONG 4 DERIVES FROM THE
AUTHORITY FROM PRONG 2. WITH REGARD TO THE INTENT OF THE THE LEGISLATURE,
OBVIOUSLY THE DECLARATION, I'M TRYING TO CUT OUT A LITTLE BIT OF WHAT I HAD PREPARED IN ORDER
TO BE MINDFUL OF THE TIME, BUT WERE THE, AS HAS BEEN DESCRIBED, THE DECLARATIONS AND FINDINGS
OF THE LEGISLATURE NR SECTION 1 A THROUGH G DETAIL THE PURPOSE AND THE INTENT THE
LEGISLATURE WHICH IN GCHT SAYS IT WAS TO ENSURE OF, SCOWS ME, WAS TO ENSURE THE COURT RETRAIN
THEIR FOCUS ON IDENTIFIED IMPORTANT FACTS AND I'LL GET MORE TO THOSE IN A MINUTE, AND
AS JUDGE, JUSTICE WAINER APTER POINTED OUT, IT SAYS "AS OPPOSED TO CONSIDERING THE IMPACT
OF SEVERING THE CHILD'S RELATIONSHIP WITH RESOURCE FAMILY PARENTS. THE
VARIETY TELEPHONE DECLARATIONS IN A THROUGH G SPEAK HE CAN'T DOCTORLY TO THIS COURT'S
OPINIONS IN J.C. AND K L F, IN WHICH THAT TYPE OF EVIDENCE, EXPERT EVIDENCE WAS FOR THE
FIRST TIME FORMALLY PERMITTED UNDER THOSE TWO CASES THAT ARE COMPANION CASES;.
JUSTICE PATTERSON: CAN I ASK YOU SOMETHING ABOUT G AS YOU WERE READING, IT JUST CAME TO
MIND HERE. IT SAYS IT IS THEREFORE NECESSARY FOR THE LEGISLATURE TO AMEND CURRENT LAWING
TO SPREN THEN AND SUPPORT KINSHIP CAREGIVERS AND ENSURE FOCUS AND IT DOESN'T SAY ENSURE
CONSIDERATION OF EVIDENCE, BUT ENSURE FOCUS ON PARENTS' FITNESS IN THE BENEFITS OF
PRESERVING THE RELATIONSHIP ETCETERA AS SEVER THE CHILD RELATIONSHIP. THAT
DOESN'T SAY THE SECOND SHOULD BE EXCLUDED, IT'S TALKING ABOUT THE FOCUS AND THIS I THINK
I'M FOLLOWING UP ON JUSTICE SOLOMON'S QUESTION, THE FOCUS SHOULD BE ON -- I'M SORRY.
MS. MCMANUS-SMITH: NO, I HEAR YOUR QUESTION AND I DISAGREE IN TERMS OF HOW
THAT POINTS TO. IT DOES SAY THAT THE COURT SHOULD BE RETRAINING THEIR FOCUS ON THE
SPECIFIC ELEMENTS THAT ARE DESCRIBED BUT IT SOCIAL SECURITY AS OPPOSED TO CONSIDERING.
IT DOESN'T SAY AS OPPOSED TO FOCUSING ON. SO IT SEEMS TO BE SAYING WE WANT YOU TO FOCUS
ON THIS AND THE WAY TO DO T IS TO STOP CONSIDERING. CHIEF JUSTICE
RABNER: IT DOESN'T SAY THAT. SMITH SMINL IT SAYS AS OPPOSED TO CONSIDERING. IT DOESN'T
SAY AS OPPOSED TO FOCUSING ON OR THINKING LESS OF ARE GIVING LESS WEIGHT TORQUE IT SAYS
AS OPPOSED TO CONSIDERING, CONSIDERING AT ALL. JUSTICE PATTERSON: THE LOIP
CHER COULD HAVE EASILY ADDED ONE SENTENCE TO BRONG FOERN IECHL SURE YOU WOULD BE MORE
SKILLFUL THAN I, WITH ALL YOUR EXPERIENCE IN WRITING THAT FOR THEM, BUT IT'S NOT THERE.
MS. MCMANUS-SMITH: RIGHT. MAT PAT IT'S JUST SIMPLY NOT THERE. SMITH SMEJ
SO IF I MAY, I BELIEVE THAT THAT LANGUAGE ABOUT AS OPPOSED TO CONSIDERING DOES HOLD SOME
WEIGHT HERE, THAT IS DIFFERENT THAN FOCUS. BUT IN ADDITION TO THAT, T I WOULD REFER BACK
TO J.C. AND K L F WHERE THIS COURT ACKNOWLEDGED THAT THERE WAS A CONTROVERSY MUNTHS EXPERTS
ABOUT THE VALUE OF USING THIS KIND OF BONDING EVALUATION TO DETERMINE HARM TO FOSTER
CHILDREN. AND SPECIFICALLY BOTH OF THOSE CASES REFER TO TWO SORT OF POINTS OF ISSUE OR
CRUX OF THE CONTROVERSY BEING 1, WHETHER THE CHILDREN ARE RESILIENT OR FRAGILE,
SPECIFICALLY WHETHER THEY CAN RECOVER FROM THE LOSS OF THEIR PRIMARY ATTACHMENT AND, 2,
THE RELATIVE IMPORTANT OF THE PARENT CHILD RELATIONSHIP IN ASSESSING ALL OF THIS. MAT
PAT DZ IS THERE ANY MENTION OF, SPERTS THE FOCUS HAS BEEN ON THE EBBS SPERTS, IS THERE
ANY MEP IN THE LEGISLATIVE HISTORY OF THE PROBLEM HERE IS EXPERTS ARE UNDERTAKING AN
ANALYSIS THAT IS NOT FAIR, THAT IS TOO SKEWED IN THE DIRECTION OF THE RESOURCE PARENTS,
WE'VE GOT TO LIMB NATAL THESE EXPERTS. (ELIMINATE). MS. MCMANUS-SMITH:
YOUR HONOR, I THINK THE HISTORY HERE GOES BACK TO A.W., I BELIEVE MR. P ALBRIGHT DID A
NICE JOB OF SORT OF GIVING THE HISTORY HERE, THAT IS A.W. SET OUT THE CONSTITUTIONALLY
REQUIRED STHAND DARD, THE CONTOURS THERE. J.C. AND K L F SAID, HEY, YOU KNOW, THAT HARM
FROM PARENTS THAT CAN INCLUDE WHAT HAPPENS WHEN A CHILD LEAVES A FOSTER PARENT AND WE
WOULD ASK COURTS TO BE CAREFUL TO LOOKING ATS EXPERT EVIDENCE AND DOING THAT. IT MADE
CLEAR THE LEGISLATURE CODIFIED THAT. JUSTICE PATTERSON: THE LEGISLATURE
HAS MANY TIMES GIVEN A POLITE OPINION WHETHER IT'S NEGATIVE, POSITIVE, OR WHAT WREFR ABOUT
THE CASE LAW BUT THAT'S NOT IN THE LEGISLATIVE HOESH IT'S NOT NOT STATUTE. SMITH SMEJ
I WOULD ADDRESS BY ADD SPLIVENLG SMJ WHY. MS. MCMANUS-SMITH: THOSE 2 POINTS
OF CONTROVERSY THAT ARE DETAIL IN J.C. AND K L F THAT THIS LEGISLATURE WAS IVEN TENDING
TO ADDRESS THAT CONTROVERSY TO SAY WE NO LONGER BELIEVE IN THIS EVIDENCE. MAT PAT IT
TALKS ABOUT THOSE CASES. MS. MCMANUS-SMITH: IT DOESN'T TALK ABOUT THOSE
CASE, BUT WE HAVE TO UNDERSTAND THEY UNDERSTOOD THOSE CASES. NOT ONLY WERE THEY GROUND
MRAK ABREAKS CASES, THEY WERE THEN CODIFIED BY THE LOIP CHER AND BY REPEELING THE EXACT
LANGUAGE THAT WAS THE COD FI DAGS OF THOSE CASES, WE HAVE TO ASSUME THAT THEY UNDERSTOOD
AND KNEW THOETS CASES. AND, QUITE FRANKLY, UNDERED STOO WHAT WAS GOING ON IN TERMS OF
THE REASON LGZ BEHIND IT. CHIEF JUSTICE RABNER: TELL US WHAT'S WRONG WITH THIS APPROACH. YOU LOOK AT THE STATUTE AND NOWHERE DOES ELT EXPRESSLY PRECLUDE
THEVEN WE LOOK T LEGISLATIVE HISTORY AND EP POINDZ TO THE FINDINGS WHICH EXPRESSES A
PREFERENCE FOR KINSHIP CARE AND PRESERVATION OF THE RELATIONSHIP WITH THE BIOLOGICAL PARENT.
BUT AGAIN NO EGS SUPPRESS STATEMENT THAT YOU MAY NOT CONSIDER HARM FROM SEVERANCE.
HOW DO YOU GOAT A COMPLETE EXCLUSION OF THAT IN LIGHT OF THE LANGUAGE, THE
TEXT OF THE STATUTE AND THE FINDINGS? MS. MCMANUS-SMITH: SO I WOULD SAY
A COUPLE OF MORE THINGS IN SUPPORT OF THE LOIF INTENT, THE FINDINGS THAT DEEM WITH A CHILD
CAN ATTACH TO MORE THAN 1 PRIMARY CAREGIVER AND CAN BUILD A ROELGS SHIP OR REBUILD A
RELATIONSHIP WITH THEIR PARENTS GOES DIRECTLY TO THE SORT OF PROFESSIONAL CONTROVERSY THAT'S
DETAILED IN J.C. AND K L F. SIMILARLY, THE FIEFRNDINGS IN G AND D AND B STRESS THE
BENEFITS OF PARENT CHILD RELATIONSHIP MAINTENANCE, FAMILY CONNECTIONS AND CULTURAL CONDITIONS
R SPECIFICALLY IN G SPECIFICALLY WHEN IT TALKS ABOUT AS OPPOSED TO CONSIDERING P FOSTER
PARENT BONDING HARM EFKTD TIFFLY, IT SAYS THE COURT SHOULD BE FOCUSED ON TWO THING, ONE
IS PARENT FITNESS AND TWO IS THE BENEFIT OF PRESERVING THE BIRTH PARENT CHILD
RELATIONSHIP. HERE FITNESS CLEARLY GOES TO PRONG 2. PRONG XO IS ABOUT THE NOT BEING ABLE
TO STOP THE HARM THE FILED HCHILD IS FACING, THAT'S PARENT FITNESS PLAIN AND SYMBOL THAT
2ND PART PRESERVING THE BERTH PARENT CHILD RELATIONSHIP. THAT IS NOT SOMETHING THAT IS
SDMUFD PRONG TWOVMENT IT IS SDMUFD PRONG 4 TO THE EXTENT THAT WE WE SEE IN A.W. WHEN IT
ARTICULATED THE 4 PRONGS IS IT TALKS ABOUT PRONG 4 HAVING TWO MOST LIKELY HARMS FROM T
P R. OBVIOUSLY IT'S AN NOT AN EXHAUSTIVE LIST BUT THE TWO EXAMPLES THEY GIVE WHICH DO
TURPS, A CHILD LING GIRING IN KAUFTD FOSTER CARE AND THE PSYCHE LM IMPACT OF THE LOSS
TO THE CHILD OF THEIR PARENT CHILD RELATIONSHIP OF THE THAT'S PRONG 4. THAT'S PREVIOUSLY
BEEN DESCRIBED AND DISCUSSED AS BEING PRONG 4. AND SO WHEN THE LEGISLATURE --
JUSTICE PATTERSON: BUT THE LEGISLATURE COULD HAVE SAID THAT, IF THEY ARE SAYING THERE ARE
ONLY TWO RELEVANT HARMS HERE THAT WE WANT YOU TO CONSIDER, IT WOULD HAVE SAID THAT. IT
WOCH EASILY SAID THAT. SMITH SMEJ ALL RIGHT. JUSTICE PATTERSON: DID IT
HAVE THE AUTHORITY TRO SAY THAT. SMITH SNNL THESE ARE THE HARMS OF T P R. P.
JUSTICE PATTERSON: IT COULD HAVE SAID THE HARMS OF T P R THAT ARE TO BE WEIGHED IN PRONG
FOR ARE AS FOLLOWS. THE HARM OF DENYING T P R IS X AND Y BUT IT IS NOT ANY KIND OF SEVERANCE
-- MS. MCMANUS-SMITH: YOUR HONOR, WITH ALL DUE RESPECT PRONG 4 DOES NOT
TALK ABOUT DENYING T P R, IT SIMPLY TALKS ABOUT THE IMPACT IF. JUSTICE
PATTERSON: MORE HARM THAN GOOD, BUT THE INVERSE IS IMPLICIT IN THAT LANGUAGE.
MS. MCMANUS-SMITH: THE HARM THE GOOD OF T P R OR DOES IT MEAN THE HARM OF REUNIFICATION.
I DON'T THINK IT MEANS HARM OF REYUVEN OCCASION. MAT PAT WILL NOT DO MORE HARM THAN
G P TERMINATION OF PARENTAL RIGHTS, MAY DO HARM, MAY DO GOOD. SO WHEN YOU LOOK AT THE
TERMINATION OF PARENTAL RIGHTS RNGS YOU'RE TALKING ABOUT COUPLE OF, MAY DO GOOD BECAUSE
THE CHILD HAS THE MROS SPEKTD OF PERMANENCY AND ADOPTION. MS. MCMANUS-SMITH:
I THINK THAT'S AN INTERESTING WAY TO CAST IT. I WILL SAY THAT IN A.W. WHF THE COURT TALKED
ABOUT GOOD, IT DID NOT, AND THE SPIFBLG AND I EXPECT CAREFULLY MADE THE CHOICE TO NOT
DESCRIBE THE GOOD OF T P R AS INCLUDING ADOPTION OR A PERMIT NAPT HOECHLT IT TALKED ABOUT
THE HOME AS BEE K A LACK OF THOSE THINGS. THE LACK OF A CHILD HAVING HASN'T ADOPTIVE,
ADOPTION PROSPECT, THE CHILD LINGERING IN FOSTER CARE IS A HARM. JUSTICE
PATTERSON: WHAT IS THE GOOD IN PRONG 4. MS. MCMANUS-SMITH: IS TO PROSPECT
CHILDREN, THE DUTY THE DIVISION BY STATUTE IS TO PROTECT CHILDREN, THE PURPOSE OF TITLE
9 IS TO PROTECT CHIRNGS THE PURPOSE OF CHILD 30 IS TO PROTECT CHILDREN FRP THE GOOD THAT
IS ACCOMPLISHED BY TERMINATING PARENTAL RIGHTS IS THE PERMANENT EMPLOYEE TECH OF THE CHIELSD
IN THE HARM ARTICULATED IN THE PRONGS 1 SHTHS TLOU 3. JUSTICE SOLOMON:
A PERMANENT PLACEMENT, ISN'T THAT PART OF THAT CONSIDERATION? MS.
MCMANUS-SMITH: IT IS IN THE EXTENT THE LACK OF SUCH IS A POTENTIAL HARM FROM T P R, THAT'S
THE WAY THIS COURT DESCRIBED IT IN A.W. IT DESCRIBED A CHILD NOT ACHIEVING.
JUSTICE PATTERSON: ONLY ABOUT HARM AND NOT GOOD WHEN BOTH ARE IN THE STATUTE?
MS. MCMANUS-SMITH: YOUR HONOR, I THINK GT IS WHAT COMES IN THROUGH 1 THROUGH 3, THAT IS THE
CHILD BEING PROTECTED FROM THE HARMS IN DESCRIBED IN 1 THROUGH 3. G L AND E.P. DESCRIBE
PRONG 4 AS A FAIL-SAFE, THAT IS A SENGD DAIRY SYSTEM TO AVOID INJURY. THE PRIMARY SYSTEM
IS 1 THROUGH 3. JUSTICE PATTERSON: IN CONSIDERING THE GOOD, OF WHAT WOULD
ARISE FROM A GRANT OF EMOTION TO TERMINATE PAR RECOMMEND RIGHTS, THE COURT IS SUPPOSED
TO NOT CONSIDER THAT THERE ARE SOURCE SHOORS HAVE HAD THE CHILDREN FOR 4 YEARS HIGH THET
CLEAN ARE WILLING TO ADOPT. THE COURT IS SUPPOSED TO SIGH THAT'S NOT PART OF THE GOOD?
SMIVENLG. MS. MCMANUS-SMITH: SMITH YOUR HONOR, MY ANSWER IS YES, THAT THEY'RE
NOT SUPPOSED TO LOOK AT THESE FOSTER PAEFRNTS, I UNDERSTAND THE SLIPPERY SLOPE HEAVE THE
WORST CASE SCENARIO IS THE ONLY CAREGIVER THE CHILD EVER NOIG THE RIPPING THAT CHILD OUT OF
THEIR ARMS, I SHOULD SAY AT THIS, I A MUCH DOD ALL 3 OF MY DHIERP CHILD DLU THE FAMILIAR
HIEM FAMILIAR WITH BEE THE FOSTER PARENT VEN THOSE RISKS, BUT I WILL ALSO SAY IN THE
SCENARIO GIVEN HI JUSTICE FASH YALLY WHO HAS. FASH YAL ONLY CARE T THEY'VE NOEVENT LOIBLG
HOOD OF THAT CHILD NOT GOING TO ADOPTION ARE BASICALLY IVEN FAN TIS MULL, IF YOU HAVE
A CHILD STRUGGLING FOR SUBSTANCE USE FOR 3, 4 YEARS, THE HARMS UNDER 1 AND 2 AND THE
REASONABLE EFFORTS THE DIVISION WOULD HAVE TO PUT FORWARD FOR 3 OR 4 YEARS ARE NEVER GOING
TO BE OUTWEIGHED BY TERMINATING THIS PARENT'S, BY THE HARM TO THE CHILD FROM TERMINATING
THIS PARENT'S RIGHTS AND THE CHANCE OF LINGERING FOSTER CARE. IT'S JUST NOT GEING TO
HAPPEN -- JUSTICE FASCIALE: CHANGE THE FAKS, SAFE THE CHILD IS 10 YEARS
OLD AND HAS BEEN WITH MANY RESOURCES FAMILIES AND IS NOW ON THE 4THTH PLACEMENT AND THE
BIOLOGICAL MOTHER IN MY HYPO IS DOING THE BEST SHE CAN, SHE'S TAKING SOME OF THE VISITATION,
SHE'S, YOU KNOW, TESTING POSITIVE HERE AND THERE, AND NOW IF A KAS IS A WITNESS WHO COMES
IN TO TRIAL AND SAYS I TOOK THE KID TO THE DENTIST AND SHE OF GOT THE TREATMENT SHE
NEEDED BECAUSE SHOES WITH RESOURCE PARENTS WHERE SHE'S BEEN FOR THE LAST 8 MONTHS, SHE'S
GOING TO CLASSES EVER ROW DAY, SHE'S EATING REGULAR MEALS, SHE'S NOT WORRYING ABOUT ANY
MRAMENT, SHE'S HAPPY WHERE SHE IS, SHE CALLS THE RESOURCE PARENT MOMMY. YOU KNOW, KEEP
GOING ON AND ON, WHAT DO I DO AS A FAMILY, JUDGE, WITH ALL THAT EVIDENCE WHEN I GO TO
PRONG 4. MS. MCMANUS-SMITH: RIGHT. SO, ONE, I THINK THE QUESTION UNDER
PRONG 4 ABOUT FOSTER CARE RS LINGERING IN FOSTER CARE, I THINK, I THINK JUSTICE PATD
SOVEN DESCRIBED IT AGS NAME, RANK AND SERIAL NUMBER. I THINK THE SPECIFICS AROUND THE,
SPECIFICS OF THE LIKELIHOOD OF THIS CHILD BEING ADOPTED IS RELEVANT TO THAT ISSUE FRN
HAS ALWAYS BEVEN RELEVANT TO THAT ISSUE. BUT WHEN YOU TALK ABOUT, YOU KNOW, THE CHILD
SAYS SHE LOVES THE FOSTER PARENT, THE CHILD IS DOING WELL, WE GET INTO WHAT A.W. REFERRED
TO AS A BETTER INTEREST AS OPPOSED TO A BEST INTEREST. WE'RE GETTING INTO COMPARING TWO
HOUSEHOLDS AND THAT HAS ALWAYS BHEN CONSIDERED INAPPROPRIATE -- JUSTICE
FASCIALE: WHAT IF T I'M NOT AM LIEFRG PRONG 4 IN THAT FASHION BUT SIMPLY CONSIDERING
THAT EVIDENCE WHEN DETERMINING WHETHER TERMINATION OF PARENTAL ROITS WOULD DO MORE HARM
THAN GOOD. MS. MCMANUS-SMITH: LET ME BACK UP AND SAY PRONG 4 SAYS PLAINLY
ON ITS FACE NOTHING ABOUT HARM FROM FOSTER PARENT BONDING. ADDITIONALLY PRONG 4 IS
SPECIFICALLY ABOUT THE IMPACT OF T P R. TERMINATING PARENTAL RIGHTS DOES NOT LEAD TO
CHILDREN LEAVING THEIR FOSTER PARENTS. TERMINATING PARENTAL RIGHTS DOES NOT LEAD TO
THE HARM FROM LEAVING THEIR FOSTER PARENTS. JUSTICE PATTERSON: RESPECTFULLY,
WHAT IS BEING PROMOTED BY GIVING THE TRIAL JUDGE HOPELY HALF OF THE PICTURE AND LEAVING
OUT OF THE REYAULT OF THE CHILD GS DAY TO DAY LOOIF WHICH MAY NOT BE GOOD, IT MAY BE
GOOD IN SOME RESPECTS, IT MAY BE VERY BENEFICIAL TO THE CHILD, AND ALLOWING THE TRIAL JUDGE
TLO EITHER BASED ON COMMON SENSE OR AN NECK TOTALLY OR PRIOR EXPERIENCE OR WHATEVER TO
MAKE SOME INFERENCES ABOUT MAY OR MAY NOT BE GOING ON AS OPPOSED TO GETTING A PROFESSIONAL
OF BEFORE THE TRIAL JUDGE WHO HAS DONE AN EVALUATION TO ALLOW THE FRIEL JUDGE TO MAKE,
THERE'S PROBABLY VERY FEW DECISIONS JUDGES MAKE IN OUR STATE THAT ARE MORE IMPORTANT THAN
THESE. SO WHY SEEK A LESS INFORMED DECISION? MS. MCMANUS-SMITH: LESS INFORMED.
ONE, IF OUR, IF OUR THEETSZ IS RIGHT THAT THE LEGISLATURE BY DESCRIBING THE FIEPINGS
AND DECLARATIONS THAT IT DOES UNDERMINING THE RELIABILITY OF STATING THINGS THAT ARE
COUNTER TO WHAT THIS COURT FOUND IN J.C. AND K L F IN TERMS OF WHAT WERE WHY THEY WOULD
RELY OVEN THAT EVIDENCE. SO AS OI READ THESE FINDINGS, THEY EFFECTIVELY
SAY THOSE SOY CALL EXPERT EVIDENCE IS JUST NOT EE LIABLE. WE DON'T BLOEFSH WHAT WE BLOEFSHD
THEN, IT TALKS ABOUT THE ADVANCEMENT OF SIGH YEVENS ADVANCEMENT OF SIGH YEN HAS SHOWN
CHILDREN ARE MUCH MORE TRAUMATIZED BY SEPARATING FROM THEIR FAMILY, THEIR PARENTS, THEIR
EXTENDED FAMILY, THEIR CULTURE, THEIR TRADITIONS, THEIR IDENTITY THAN THEY ARE FROM BA
WE CAME TO VIEW AS THIS BONDING EE VAL WIGS WHICH MEASURES LITERALLY HAD THE CENTRAL PERCH
IN THIS CHILD'S LIFE, THAT IS BASICALLY WHO DO THEY LIVE WITH. AND ASSUMING THE COURT
ORDERS HAVE BEEN FOLLOWED, WE ALL KNEW WHO THE CHILD LIVES WITH. SO BOVENDING IN THEETS
EVALUATIONS DOESN'T NECESSARILY MEAN WHAT YOU OR I MIGHT HAVE THOUGHT BONDING MENTD BEFORE
WE STARTED LOOKING AT THESE CASES. JUSTICE FASCIALE: DOES THE PARENT NNL
CASE GET A BOPPEDING EVALUATION? PT. MS. MCMANUS-SMITH: MY UNDERSTANDING
IS THAT WERE COMPETING BOND K EVALUATIONS IN THIS CASE. JUSTICE FASCIALE:
IS EVERYTHING YOU HAVE SID WITH THE BONGD EE VAL WITH THE RESOURCE FAMILY PARENTS TO THE
BOOPDING WITH THE PARENTS. SMITH SMJ WHO THE CHILD LIVES IN EFFECTIVELY. THE A KIND OF
UNHEDGE FULL, QUITE FRANKLY. JUSTICE FASCIALE: FOR THE PARENTS, TOO. SMITH
NIJ IF WHAT WE'RE SAYING WHO DOES THE CHILD LIVE WITH, IEVENLG IT'S UNHELPFUL, IF THERE
IS SOMETHING MORE IN DEPTH THAT DEALS BY SOMETHING THAT MIGHT TEST, MIGHT TEST, EXCUSE
ME, MIGHT PASS EVEN A FRIDAY TEST MUCH LESS A DO YOU BERT TEST, THEVEN MIGHT BE RELATIVE
AS TO THE BOPPEDING THE CHAERPT AND PARENT AND CHILD. AGAIN THE DEVELOPMENT OEF THE YEARS
OF SIGH YEPS HAS INCLUDED LOCKING AT HOW MUCH IFK R AND HARM THERE HAVE BEEN TO CHILDREN
FROM SEPARATING AL TOEK FROM THEIR FAMILY. WE SO SOME OF THIS FROM THE FAMILY SEPARATIONS
AT THE SOUTHERN BORDER THAT R NOTHING TO DO WITH CHOILD ABUSE AND NEGLECT, BUT THERE'S
A LOT OF EVIDENCE THAT HAS COME FROM THAT AS WELL AS RESEARCH AROUND CHILDREN WHO HAVE
BEEN -- JUSTICE SOLOMON: CAN I JUST ASK YOU ONE QUESTION. IN THIS PARTICULAR
CASE, THERE WAS CONSIDERATION OF THE POTENTIAL PERIOD OF TIME NAPT PLACEMENT OF THE
CHILDREN. PERMANENT PLACEMENT OF THE CHIRP, CORRECT? MS. MCMANUS-SMITH:
I BELIEVE THAT'S CORRECT. I THINK IT'S A MIX AS TO. JUSTICE SOLOMON: THAT WAS
ONE OF THE ISSUES. WAS THAT A PERMISSIBLE CONSIDERATION IN DETERMINING
WHETHER TO DETERMINE TO THE TECHL 98 PAR REN RIGHTS, YOU SITE CITE OF LANGUAGE OF A.W.
AND T C, THEY WERE JUST TEMPORARY PLACEMENT, THERE WAS NO PERIOD OF TIME NAPT EE
AVAILABILITY AT THAT TIME. WAS THE APPROPRIATE TO CAN CONSIDERING PER NAPT PARENTAL RIGHTS,
WE HAVE A PERMANENT PLACE AVAILABLE. OF. MS. MCMANUS-SMITH: NO I THINK
A.W. JUSTICE SOLOMON: IN THIS CASE. OF SMITH SMEJ KIFRT APARTMENT WITH
WHAT A.W. SAYS IN TERMS OF LOOKING AT WHETHER A CHILD IS LIKELY TO LOOK IN FOSTER CARE
NOIG THE FACT BS ABOUT WITHER A CHILD HAS A PERMANENT PLACEMENT AVAILABLE TLO THEM SEEMS
TO ME TOTALLY HE WILL VEPT VEN APPROACH YIT AND UNDER THIS, IN DECISION TO THINGS LIKE
DOES THE CHILD RISH POB ADOPTED BE THEM, DOES THE FOSTER PARENT WISH TO A DO THAT. ARE
THEY OCCUR RESOURCE PARENTLY HE WILL 11 ANL TO ADOPT, I THINK THEY HAVE TO LIVE RI THE
PARENTS 6 MONTHS, THOETS KIND OF THINGS ALL SEEM RELEVANT AND NOT BARRED P BY A BAR ON
RP USE OF HARM FROM SEPARATING FROM FOSTER PARENTS AND I WILL JUST TURN TO THE XARG THE
FOSTER FAMILY TO A FAMILY PUTS US IN THE REALM OF LOOKING AT THIRD PARTIES VERSUS PARENTS
OR OF GO MENT VERTSZ A PARENT, THE OH POECHG PARTIES HERE RELY ON 9:2-4, THE STATUTE THAT
STARTS BY SAYING THE PARTIES HERE ARE TWO PARENTS WHO HAVE SEPARATED THE AND THOSE PARENTS
HAVE EQUAL RIGHTS WITH REGARD TO THE CHILD. CHIEF JUSTICE RABNER: IN THE
INTEREST OF TIME I'M A TRADE WE HAVE FO MITIGATING FACTOR ON, THE ACHE YOU WOULD LIKE
T ADD BEFORE YOU SIT DOWN? MS. MCMANUS-SMITH: CHIEF JUSTICE
RABNER: MS. ARMSTRONG. ELEANOR M. ARMSTRONG: MAY IT PLEASE THE COURT, THE
ISSUE IN THIS CASE IS THE LEGISLATURE'S DECISION TO AMEND PRONG 2 OF THE BEST INTEREST
STATUTE AND WHAT IMPACT THAT AMENDMENT HAS, IF ANY, ON PRONG 4, AND THE DIVISION'S POSITION
IS IS THAT THE SPECIFIC AMENDMENT TO PRONG 2 HAS NO IMPACT ON THE COURT'S ANLT TO ASSESS
RELATIONSHIP EVIDENCE ABOUT A CHILD AND THEIR RESOURCE PARENT PT. IT IS NOT
COULDN'T TESTERED CONTESTED THAT THE IMPACT OF THE LOICH CHEFR'S DECISION TO REMOVE THE
SERIOUS INENDURING HARM FROM PRONG TWO NOW FORECLOSES THE DIVISION SEEKING TO TERMINATE
A PARENTS' RIGHT BASED ON THE CHILD'S RELATIONSHIP WITH THE RESOURCE PARENT. SO AS
JUSTICE NORIEGA SAID, THE LEGISLATURE HAS REMOVED THE SILVER BULLET. IT HAS
DIRNL PACT IN THAT THE CHILD'S RELATIONSHIP WITH THE RESOURCE PARENT AND THE IMPACT OF
SEVERING THAT RELATIONSHIP IN A PRONG 2 ANALYSIS WOULD OFTEN TIP THE SCALES IN FAVOR OF
A FINDING OF PARENTAL UNFITNESS. SO THAT BY REMOFG THAT SENTENCE, THE LEGISLATURE HAS
SIGNIFICANTLY NARROWED THE DEFINITION OF PARENTAL UNFITNESS AND IN SO DOING, SUPPORTS
ONE OF THE MAIN OBJECTIVES OF CHAPTER 1 SCLOER IS T PRESERVE FAMILIES WHEN YEF POSSIBLE.
VEN WHEN THE LEGISLATIVE FINDING G IS CONSIDERED WHEN IT TALKS ABOUT PARENT FITNESS AND
FOCUSING ON THAT PRESERVING PARENTAL RIGHTS, I BELIEVE THAT THAT LOIF TIFF FINDING IS
DIRECTLY RELATED TO THE HOICH CHER'S DECISION WITH REGARD TO PRONG 2 HERE BECAUSE I, I
BELIEVE IT IS THE LEGISLATURE ADDRESSING THAT WHILE THERE IS A LONG HISTORY OF CASE LAW
WHICH STANDS FOR THE PROPOSITION THAT IF A CHILD IS GOING TO SUFFER SERIOUS P ENDURING
HARM IF REMOVED FROM THE RESOURCE PARENT, THEPT PARENT'S RIGHTS NEITHER TO TERMINATED
TO PROTECT THE CHILD FROM THAT HARM, THAT THE LEGISLATURE HAS NOW DETERMINED THAT THE
BENEFITS OF MAINTAINING A PARENT CHILD RELATIONSHIP SHOULD TRUMP THAT CONCERN FOR
ALL INTENTS AND PURPOSES AND THAT ANY ANALYSIS OF PARENTAL UNFITNESS HAS TO BE BASED UPON
THE PARENT, AND WHETHER THE PARENT CAN SAFELY TAKE CARE OF THIS CHILD AS CORRECTLY HELD
BY THE APPELLATE DIVISION THAT THAT ANALYSIS HAS TO BE ISOLATED FROM ANY CONSIDERATION
OF THE CHILD'S RELATIONSHIP WITH THE RESOURCE PARENT. THAT IS PRONG 2.
PRONG 4 WHICH OPERATES AS A FAIL-SAFE BY ITS PLAIN UNCHANGED LANGUAGE REQUIRES THE TRIAL
COURT TO BALANCE BOTH OF HARM AND THE GOOD THAT A CHILD WOULD EXPERIENCE IF PAR REN RIGHTS
WERE TERMINATE THE. I WILL ALSO ASK THE COURT TO GO PACK TO BACK TO A.W. WHICH WAS DECIDED
OVER 35 YEARS AGO AND IN DISCUSSING THE 4TH PRONG, THIS COURT SPECIFICALLY INDICATED THAT
PART OF THE ANALYSIS UNDER PRONG 4 IS WET THE CHOILD HAS ALREADY DEVELOPED RELATIONSHIPS
OUTSIDE OF THOSE WITH THEIR PARENT VEN WHAT THE IMPACT OF DISRUPTING THE REELS SHIP WOULD
HAVE ON THE CHILD. AND IT HAS OVER 35 YEARS SINCE A.W. AND SINCE THAT TIME, COURTS HAVE
CONSISTENTLY CONSIDERED ALL OF THE CHILD'S CIRCUMSTANCES INCLUDING THE CHILD'S
RELATIONSHIPS WITH THEIR PARENTS, WITH HIR RESOURCE PARENT, WITH THEIR SIBLINGS AND
OTHER EFRPT IMPORTANT ADULTS IN THEIR LIVES WHEN MAKE THE DETERMINATION HAS TO WHETHER OR NOT
PARENTAL RIGHTS, TERMINATING PAR REPUBLIC ROITS WOULD DO MORE HARM THAN GH. AND THE
LEGISLATURE IS PRESUMED TO KNOW THAT THAT IS THE PRONG 4 ANALYSIS AND I THINK THAT IS
PARTICULARLY TRUE HERE WHERE IT IS THIS COURT THAT DEVELOP THE THE FOUR PRONG ANALYSIS
AND THE LEGISLATURE SUBSEQUENTLY CODIFIED IT. AND I WOULD SUBMIT TO THIS
COURT THAT THAT APPROACH MAKES SENSE. THE QUESTION THAT HAS TO BE ANSWERED ON PRONG 4
AS STATED BY THIS COURT IN E.P. IS WHETHER IT WILL SERVE THE CHILD'S BEST INTEREST TO
SEVER THE PARENTAL RELATIONSHIP. LIMITING THE EVIDENCE, A TRIAL COURT CAN CONSIDER UNDER
PRONG 4 LEADS TO AN ARTIFICIAL ANALYSIS BECAUSE THE TRIAL COURT WOULD BE REQUIRED TO TURN
A BLIND EYE TO POTENTIALLY CRITICAL EVIDENCE ABOUT THE CHILD. AND I BELIEVE THAT THE
APPELLATE DIVISION CORRECTLY PHRASED THE INQUIRY OR THE POSITION OF THE DEFENSE IN THIS
CASE AS THE COMPLETE BAR TO ALL EVIDENCE ABOUT A CHILD'S RELATIONSHIP WITH THEIR RESOURCE
PARENT AS SHOWN BY THE TRIAL RECORD. THE CASEWORKER WAS ASKED HOW ARE THE CHILDREN
DOING IN RESOURCE CARE, D.C. HACHLT OBJECTED SHTHS ASSERTING THAT PURSUANT TO THE 2021
AMENDMENT TO THE BEST INTEREST TEST, THAT TESTIMONY WAS NO LONGER RELEVANT. IN
OVERRULING THE OBJECTION AND ACKNOWLEDGING THIS CONSIDERATION OF THAT EVIDENCE IN THE PRONG
4 A NAL IS, THE TRIAL JUDGE QUESTIONED HOW HE COULD MAKE A BEST INTEREST DETERMINATION
WITHOUT ARE KG THAT EVIDENCE. HE WAS CORRECT, THE CHILD IS THE FOCUS OF THE CASE, THE
CHILD IS THE FOCUS OF PRONG 4 AND FACTS DO TO THE DISAPPEAR JUST BECAUSE THEY ARE NOT
CONSIDERED. THE DIVISION'S POSITION IS THAT THIS CHANGED THE BEST INTEREST TEST WORKING
IN TANDEM WITH ON THE, TITLES 9, 30 AND THE KINSHIP LEGAL GUARDIANSHIP ACT TO PROMOTE
BETTER OUTCOMES PLACED IN THE DIVISION'S CUSTODY, THAT INCLUDES TERM NATHS OF THE PAR
REN RIGHTS WHEN THAT IS BEST FOR THE CHILD. PARAGRAPH PAG THE LEGISLATIVE ACCOMPLISH
PAR REN RIGHTS NOT ONLY THAT THE CHANGE TO PRONG 2 BUT ALSO IN THE CHANGE TO THE KINSHIP
LEGAL GUARDIANSHIP STAND DASHED THAT JUSTICE OL SOLOMON REFER REFERENCED THAT IT KINSHIP
LEGAL RECORD ESTABLISHED THAT THE CHILD COULD BE ADOPTED. THE DIVISION'S
INTERPRETATION OF THE AMEND THE TO THE BEST INTEREST TEST IS ENTITLED TO DEFERENCE FROM
THIS COURT AND IS FULLY CONSISTENT WITH THE OBJECTIVE TO PRESERVE PARENTAL RIGHTS WHEN
THAT IS BEST FOR THE CHILD. IT IS SUPPORTED BY THE AMENDMENTS PLAIN LANGUAGE AND THE
PERMIT THE THE FAMILY COURT TO MAKE THE FACT SENSITIVE CHILD SPECIFIC ANALYSIS THAT THIS
COURT DETERMINES IN ALL TERMINATION MATTERS. I WOULD JUST ADD AS WELL THAT I DON'T THINK
THAT THIS CASE IS ABOUT THE NATURE OF THE PRONG 4 PROOFS. THAT IF THERE IS GO TO BE
A DAL ACHALLENGE TO WHAT THIS EVIDENCE SHOULD BE, THAT THAT CHALLENGE SHOULD BE BROUGHT
BEFORE THE TRIAL COURT. THE DIVISION DOES ASK THAT THIS COURT AFFIRMLY OPINION THE
APPELLATE DIVISION. CHIEF JUSTICE RABNER: THE APPELLATE CONDITION COULD
DIRECT THE SEPARATE THE BONDING BETWEEN RESOURCE PAR REN AND CHILD IS OFF BOUNDS ALTOGETHER,
YOU DON'T DISAGREE WITH THAT? ELEANOR M. ARMSTRONG: THAT THEY COULD HAVE
DONE THAT. CHIEF JUSTICE RABNER: THE QUESTION IS WHETHER THEY HAVE DONE
SO. I'D LIKE TO YOU EXPLAIN TO US WHY THE LANGUAGE IN G AND THE LEGISLATIVE FINDINGS
WHICH COUNSEL HAVE STRESSED IS DIRECT LD OPENLY AT PRONG 2 AND NOT PRONGS 2 AND 4.
ELEANOR M. ARMSTRONG: SO THE FIRST THING I WOULD SAY, YOUR HONOR S THAT THE LEGISLATIVE
FINDINGS WOULD YIELD TO THE PLAIN LANGUAGE OF THE FOUR-PRONG TEST, BUT I THINK WHEN YOU
LOOK AT THE LEGISLATIVE FINDINGS OVERALL, THEY ENCOMPASS FULLY ADD DLES THE CHANGES THAT
WERE MADE TO THE THREE BODIES OF LOICH STHUN WE'RE TALKING ABOUT HERE, 9, 30 AND KINSHIP
LEGAL GUARDIANSHIP AND THAT IN TALKING AGAIN ABOUT G WHERE IT SAYS THE FOCUS SHOULD BE
ON PARENTAL FITNESS AS OPPOSED TO CONSIDERING THE RELATIONSHIP WITH THE RESOURCE PARENT
THAT, IS THE LEGISLATURE SPEAKING TO THE CHANGE ON PRONG 2 AND ITS DECISION THAT A CHILD'S
RELATIONSHIP WITH THEIR RESOURCE PARENT SHOULD NO LONGER BE PART OF A PARENTAL FITNESS
ANALYSIS. JUSTICE FASCIALE: AND THAT DEALT SEFRMGLY WITH KINSHIP CARE,
BEE THE PREFERENCE, IF POSSIBLE, TO KEEP THE CHILD AND THE RELATIONSHIP WITH THE PARENT
INTACT, IF THERE IS SOMEONE THAT COULD TAKE OVER, SO THAT THE PARENTAL RIGHTS NEED NOT
BE TERMINATED, THAT WAS THE WHOLE POINT BEHIND THAT. ELEANOR M. ARMSTRONG:
WHEN YEW SARING KINSHIP IRRELEVANT KIVEN LEGAL GUARDIANSHIP. JUSTICE FASCIALE:
NO, KINSHIP CARE. ELEANOR M. ARMSTRONG: IT IS WHEN CHIFRN PLACED WITH
FAMILIES THERE ARE BET OUTCOMES AND SOME OF THAT REUNIFICATION PERHAPS CAN OCCUR MORE QUICKLY
IF A CHILD IS WITH FAMILIAR, BUT ALSO THAT PLACEMENT WITH FAMILY AM LOUS THE CHILD TO
MAINTAIN, YOU KNOW, KEKS WITH FAMILIAR AND THEIR CULTURE AND RELIGION. CHIEF
JUSTICE RABNER: IS THE ANOTHER WAY TO READ THE LANGUAGE IN G AND JUSTICE PATTERSON ASKED
THIS IN A QUESTION EARLIER, NAMELY THAT THE TWO LAST TWO CLAUTSZ HAVE TO BE READ TOELG,
THAT THE LEGISLATURE PURPOSE WAS TO EN SHOWER THAT THE FOCUS ON PARENT'S KITNESS, AS
OPPOSED TO FOCUS BEING ON IMPACT OF SEVERING THE CHILD'S RELATIONSHIP. THE FOCUS IS ON
B BUT THE FOCUS IS NOT HON B. THAT DOESN'T MEAN YOU DON'T CONSIDER B? ELEANOR
M. ARMSTRONG: I AGREE WITH THAT, WITH JUSTICE PATTERSON. PAT PT THE CHIEF ARTICULATE
THE IT MUCH BETTER THAN I DID, THAT'S WHY IT'S CLEARER. CHIEF JUSTICE RABNER:
THAT WOULD EXTEND, IF THAT'S A CORRECT READING, TO THE ENTIRETY OF THE STATUTE OR TO AND
FOR IT. ELEANOR M. ARMSTRONG: I ALSO THING THE LEGISLATIVE FINDING F IS
RELEVANT AND AGAIN AS JUSTICE PATTERSON POINTED OUT, THEY DID NOT HAVE TO INCLUDE THAT
PHRASE IN AND OF ITSELF. THEY COULD HAVE WRITTEN THAT LOIF TIFF FINDING AND LEFT THAT
QUALIFICATION OUT AND BY INDICATING OR PUTTING THAT LANGUAGE IN, I THINK A FAIR READING
OF THAT INDICATES THAT WHILE IT SHOULD NOT BE DISPOSITIVE OF A TERMINATION, DISPOSITIVE
OF PARENTAL UNFITNESS, IT IS STILL A FACTOR TO BE CONSIDERED WHEN YOU ARE EVALUATING WHAT
IS THE IN THE INTEREST INTEREST OF A CHILD. MAT PAT DO YOU READ IN AND OF ITSELF JUSTICE
NORIEGA'S TERM NO MORE SILVER BULLET, HARM ARM THAT'S STRKT KT OEXACTLY HOW I READ.
EUFPLT: . JUSTICE WAINER APTER: IT SEEMS ODD FOR THE TO SAY, ENSURE
FOCUS ON PARENTS FITNESS AND R RELATIONSHIP AS OPPOSED TO CONSIDERING, P WHAT YOU MEAN
THO STAY AS HOE POSED TO FOCUS ON CONSIDERING. HOW DOES ONE FOCUS ON CONSIDERING SMSHGS
IT SEEMS LIKE THE VERB IS YOU CONSIDER THE THIRNGS ESPECIALLY WHEN IT HAS THE I N G
ATTACHED TOITD. ELEANOR M. ARMSTRONG: I DO UNDERSTAND YOUR POINT, BUT
THE. JUSTICE PATTERSON: KOIT POSSIBLY BE, I'M SPECULATING HERE, IT COULD
POBLY BE THE CONSIDERING WAS THROWN IN THERE SO IT WOULD NOT READ AND SURE FOCUS ON PARENTS
FITNESS EN SHURG THE BIRNL PARENT RELATIONSHIP AS OPPOSED TO THE IMPACT OF SEVERING.
WHICH WOULD HAVE THE TWO CLAUSES COMPARING THE RELATIONSHIP VERTSZ THE IMPACT OF SEVERING.
I THINK THAT MIGHT HAVE BEEN MORE CONFUSING LANGUAGE WHEN THEY THREW CONSIDERING IN THERE
PERHAPS TO CLARIFY WHAT THE TWO ON THAT SHUVENS ARE. ELEANOR M. ARMSTRONG:
RIGHT BUT I WOULD LIKE TO TAKE THE COURT BACK TO THE PLAIN LANGUAGE AND ARE THE LEGISLATURE
DECISION NOT T ALTER PRONG FOR. JUSTICE WAINER APTER: IN TERMS OF MRAVEN
LANG WFRM HIGH THOUGHT I HEARD YOU SAY THAT PRONG 4 IS JUST A FAIL-SAFE AND I THOUGHT
FROM OUR PRIOR CASE LAW A FAIL-SAFE MEANS THAT THE OPENLY PURPOSE OF PRONG 4 IS TO TIP
IN FAVOR OF NOT TERMINATING PARENTAL RIGHTS FF TERMINATING PARENT RIGHTS WOULD ON THE WIEGS
HAVE BEEN SUPPORTED BY 1, 2 FRN 3, BUT THAT ACTUALLY IT WOULD DO MORE HARM THAN GOOD SO
IT'S A LAST DITCH WAY TO NOT TERMINATE PARENTAL RIGHTS, THAT'S WHAT CALLING IT A FAIL-SAFE
MEANT. DO YOU AGREE WITH THAT? ELEANOR M. ARMSTRONG: I'VE AGREE, I THINK
WHAT PRONG 4 REQUIRES IS FOR THE COURT TO TAKE A STEP BACK, SO TO SPEAK, AFTER FINDING
THE FIRST 3 PRONGS ARE MET TO ENSURE THAT ENDING THE PARENTAL RELATIONSHIP IS SOMETHING
THE CHILD CAN WITHSTAND. JUSTICE WAINER APTER: AND SO WITHIN THAT, THEN
THE PURPOSE OF HAVING A COMPARATIVE BONDING EVALUATION THAT SHOWS A STRONG RELATIONSHIP
WITH THE RESOURCE PARENT IS JUST TO SHOW THAT IT'S SOMETHING THE CHILD CAN WITHSTAND?
ELEANOR M. ARMSTRONG: RIGHT. I WOULD SUBMIT TO YOU THAT, YOU KNOW, OBVIOUSLY
WE DON'T DO COMPARATIVE BOFRNDINGS IN ALL WASZ CASES BECAUSE THEY ARE SITUATIONS WHERE
THEY'RE JUST NOT WARRANTING BIFD ON THE FAK, IF WE HAVE A CHILD WHO NOT IN A RE SOURCE
ADOPTION, A NEW PLACEMENT, IT'S NOT THE FOUR YEAR HYPOTHETICAL, AND WHAT THE COURT HAS
FO ANSWER IS WHAT DOES THE CHILD HAVE IN HIS OR HER LIFE THAT IS GOING TO HELP THE CHILD
MAKE UP ORDEAL WITH AND COPE WITH THE LOSS OF THEIR PARENT AND SO THE EVALUATING WHAT
THE CHILD'S RELATIONSHIP LOOKS LIEKS WITH THE RESOURCE PARENT CAN BE HELPFUL TO THAT PRONG
4 ANALYSIS VEN I WOULD DISPUTE ELLIS JAY ASSERTION THAT DENIAL OF TRM NAEGS DOES TO
THE LEAD TO THE DISRUPTION OF RESOURCE CARE. WE HAVE CIRCUMSTANCES A RESOURCE PARENT IS
TELD THEY CANNOT ADOPT, THEVEN THEY NO LONGER WANT TO CARE FOR THE CHILD. SO THE REALITY
FOR THE CHILD IS THAT IF TERMINATION SDPE FOG RESULT IN THEM LOSING THEIR RESOURCE PARENT,
I THINK THAT HAS TO BE PART AFT PRONG FOR ANALYSIS. OF. JUSTICE SOLOMON:
I TAKE IT, JUST IVEN FERING, AVAILABILITY OF A PERMANENT PLACEMENT IS ALSO A CONSIDERATION?
ELEANOR M. ARMSTRONG: YES I THINK IT WAS APPROPRIATELY CONSIDERED HISTORY
BY THE TRIAL COURT. JUSTICE FASCIALE: AND THAT'S USUALLY BY THE WAY,
YOUR POINT ABOUT ADOPTION BEING LIKELY, AT A PERMANENCY HEARING, A JUDGE IS APPROVING THE
PLAN, THE PERMANENCY PLAN OF ADOPTION FOLLOWED BY TERM NATHS OF PASH RECOMMEND RIGHTS
FOLLOWED BY ADOPTION BECAUSE THERE'S SOMEONE STRIEBL ADOPT. IT'S PART OF THE EVIDENCE
THE JUDGE CONSIDERING IN APPROVING SUCH A PLAN. ELEANOR M. ARMSTRONG: YES.
CHIEF JUSTICE RABNER: UNREAP LAFTED MATTER, THERE'S DEBATE ABOUT WHAT
WEIGHT TO GIVE TO A COMMENT BY LEGISLATIVE AID DURING THE COURSE OF THE PROCEEDINGS HERE
FRP AS A GENERAL RULE, SHOULD COURTS BE CAUTIOUS ABOUT THAT CREDITING COMMENTS BY AIDS,
SCH A STEP THAT'S A BIT FAR REMOVED FROM THE INTENT OF LEGISLATORS IF THEY'RE NOT
EXPRESSLY A DOPTDED. ELEANOR M. ARMSTRONG: I THINK THE AVENS AT THE QUESTION
COULD DEPEND ON WHAT THE CIRCUMSTANCES ARE AND WHAT OTHER LEGISLATIVE SHOER AVAILABLE
FOR THE COURT'S CONSIDERATION. I DO THINGING THERE IS A DITS TIVENGS POSSIBLY HERE BECAUSE
THE LEGISLATIVE AID WAS ESSENTIALLY ASKED TO SPON TO THE QUESTION FROM THE ASSEMBLYWOMAN
WHO WAS, YOU KNOW, ASKING ABOUT THE IMPACT. BY THE SPONSORING LEGISLATOR SO HE HEARD
THE AID'S RESPONSE AND DID NOT DISPUTE IT. CHIEF JUSTICE RABNER: THAT'S
THE PROBLEM, EE NEITHER DISPUTED IT NOR ENDORSED IT. ELEANOR M. ARMSTRONG:
BUT I WOULD SUBMIT TO THE COURT TH THIS IS A MRANG LANGUAGE ANALYSIS AND THE CONCEPT THAT
THE CHOICH LER IS AWARE OF THIS COURTSES ENACTMENTS OF ITS STATUTORY SCHEMES AND THE
CLEAR 35 PLUS YEAR HISTORY OF WHAT A PRONG 4 ANALYSIS LOOKS LIKE, THAT IF THE LEGISLATURE
HAD ATTENDED TO ESSENTIALLY UP END IT IT WOULD HAVE HAD TO HAVE DONE SOMETHING MORE
DELIBERATE THAN WHAT IT DID. CHIEF JUSTICE RABNER: QUESTIONS ANYONE".
JUSTICE WAINER APTER: TWO KWETHSS, PRESUMABLY A SEM PLEA COULDN'T WAY HAD DISAGREED
WITH HOW HE HAD ENTERED THE FISHS 1 HE WOULD NOT HAVE ALLOWED HIM TO ANSWER THE FOLLOW
UP QUESTION, RIGHT? ELEANOR M. ARMSTRONG: I WOULD THINK SO.
CHIEF JUSTICE RABNER: AEG WOULD YOU LIKE T ADD, AP, THANK YOU. MS. GOEB AT ANY TIME.
NEHA GOGATE: NEHA GOGATE: NO EVIDENTIARY BAR TO THE COURT'S ABILITY TO
CONSIDER THE CHILD CAREGIVER RELATIONSHIP. AND, SECOND, THE GUARDIANSHIP STATUTE IS
A FACT INTENSIVE INQUIRY THAT REQUIRES FLEXIBILITY FOR THE COURT TO CONSIDER ADMISSIBILITY
OF ALL PROOFS THAT PROVIDE A FULL PICTURE OF THE FAMILY's CIRCUMSTANCES VMENT THAT THE
PARENTS CIRCUMSTANCES AND THAT OF THE CHILD WHO HOLDS THE CENTRAL FOCUS OF THE COURT.
TURNING TO MY FIRST POINT, THE 2021 AMENDMENTS DELETED ONE SENTENCE FROM THE
GUARDIANSHIP STATUTE. AND NOW THAT SENTENCE IS NOT PART OF THE PLAIN TEXT. THE PLAIN
TEXT OF THE AMENDED STATUTE INCLUDES NO EVIDENTIARY LIMITATIONS. NOW, GIVEN THAT
COURTS INTERPRET STATUTES BY THEIR PLAIN LANGUAGE, TO CONCLUDE THE LEGISLATURE INTENDED
TO BAR EVIDENCE BY OMITTING LANGUAGE FROM THE STATUTE WOULD BE AN INTERPRETATION OF THE
LEGISLATURE's OMISSION RATHER THAN THE WORDS IN THE STATUTE AS AMENDED. IF
THE LEGISLATURE INTENDED TO ENACT A LIMITATION TO THE COURT'S FUNCTION TO CONSIDER AND
ASSESS EVIDENCE KNOWN TO BE SIGNIFICANT TO ITS ANALYSIS, IT WOULD HAVE SAID TO EXPLICITLY.
JUSTICE WAINER APTER: ARE YOU SAYING EVEN UNDER PRONG TWO IT CAN COME IN BECAUSE
THE ONLY THING THE LEGISLATURE DID WAS DELETE A SENTENCE? NEHA GOGATE: IN
THIS CASE, I WOULD INDICATE, YES, THAT THAT IS WHAT OCCURRED IN THIS CASE. IF THE
LEGISLATURE INTENDED TO ENACT A BAR TO EVIDENCE IN A FACT INTENSIVE INQUIRY LIKE THE
GUARDIANSHIP ANALYSIS, IT WOULD HAVE STATED SO EXPLICITLY. JUSTICE WAINER APTER:
YOU'RE SAYING THAT NOW POST AMENDMENT PRONG TWO IS EXACTLY THE SAME AS BEFORE THE AMENDMENT
BECAUSE WE CANNOT INTERPRET THE DELETION OF THE LANGUAGE ANY MEANING ON WHAT COURTS CAN
AND CANNOT DO GOING FORWARD. NEHA GOGATE: WELL I THINK IT RE-MOVED THE HEAVY
HAND IN PRONG TWO OF THAT LANGUAGE. OF THE SEVERANCE LANGUAGE. CHIEF JUSTICE
RABNER: WHAT DOES THAT MEAN IN PRACTICE? IN A COURT PROCEEDING, MAY A JUDGE CONSIDER
IT OR NOT CONSIDER IT. NEHA GOGATE: THE COURT WOULD BE ABLE TO CONSIDER THAT
EVIDENCE BUT CERTAINLY IT WOULD BE GIVEN ITS DUE -- IT WOULDN'T BE IN A SITUATION AS THOUGH
THE COURT WOULD FEEL INCLINED TO ADDRESS THAT ISSUE. WOULD BE IF IT WAS PRESENTED IN
THE CASE. CHIEF JUSTICE RABNER: BUT THAT WASN'T REQUIRED BEFORE. SO WHAT'S
THE DIFFERENCE AS YOU UNDERSTAND THE AMENDMENT? NEHA GOGATE: THE DIFFERENCE
WOULD BE THAT IT RE-MOVED THE HIGHLIGHT OFF OF THE EVIDENCE OF SEVERING THE CAREGIVER
RELATIONSHIP IN PRONG TWO. AND THAT IS CONSISTENT WITH STATEMENT G WHERE IT IS
INDICATED THAT THE GOAL WAS TO FOCUS ON PARENTAL FITNESS RATHER THAN THE CONSIDERATIONS
OF SEVERING THE CAREGIVER RELATIONSHIP. AND -- JUSTICE SOLOMON:
IS THAT ALSO CONSISTENT WITH SOME OF THE LEGISLATIVE HISTORY THAT TALKS ABOUT THE
RELATIONSHIP WITH THE FOSTER PARENT CANNOT BE THE SOLE REASON FOR INSTITUTING A PETITION
TO TERMINATE PARENTAL RIGHTS? THERE ARE STATEMENTS BY THE ASSEMBLE MEN TO THAT
EFFECT. IS THAT SUPPORTING YOUR POSITION? NEHA GOGATE: I THINK IT DOES AND
WE HAVE CASE LAW THAT INDICATES THAT THE BOND BETWEEN A CHILD AND THE CAREGIVER CANNOT
BE THE SOLE BASIS FOR A TERMINATION OF PARENTAL RIGHTS. AND THAT WOULD BE -- I CAN TURN
THE COURT's ATTENTION TO THE CASE OF D M. THAT'S 414 N.J. SUPER. 56. WHERE IT INDICATES
THAT ANY HARM TO THE CHILD -- ANY HARM THE CHILD MAY SUFFER FROM SEVERING THE BOND IN
OF ITSELF MAY NOT SERVE AS A LEGALLY SUFFICIENT BASIS FOR TERMINATION OF PARENTAL RIGHTS.
SO IN KEEPING WITH THAT, THE GOAL OF THE LEGISLATURE WAS TO RE-MOVE THE EMPHASIS
THAT WAS PLACED ON THIS EVIDENCE IN PRONG TWO. AND THAT IS CONSISTENT WITH THE MAY 17,
2021 ASSEMBLY COMMITTEE SESSION. JUSTICE NORIEGA: COUNSEL, DO YOU FIND
ANYTHING WRONG WITH THE APPROACH THAT THE TRIAL JUDGE USED HERE IN NOT CONSIDERING PRONG
TWO BUT CONSIDERING IT IN PRONG FOUR? NEHA GOGATE: NO, JUSTICE, I WOULD INDICATE
THAT WOULD BE A RELEVANT CONSIDERATION UNDER PRONG TWO IN THIS CASE OR A NECESSARY
CONSIDERATION UNDER PRONG TWO. JUSTICE NORIEGA: JUSTICE NORIEGA:
IT WOULDN'T BE? I'M SORRY? IT WOULD NOT BE? NEHA GOGATE: IT WOULD NOT BE
BE A NECESSARY CONSIDERATION UNDER PRONG TWOCHLT IT WOULD NEVER BE A NECESSARY CONSIDERATION
UNDER PRONG TWO BUT IF THE FACTS WERE TO PRESENT THEMSELVES WHERE THE CHILD, THE HARM
THE CHILD IS FACING OR THE DELAY IN PERMANENT PLACEMENT ADDING TO THE HARM OF PRONG TWO,
THAT EVIDENCE WOULD BE NEEDED AS TO THE CHILD'S CAREGIVER RELATIONSHIP THAT THAT WOULD BE
RELEVANT IN THAT CIRCUMSTANCE. BUT IN THIS CASE, THERE WAS PARENTAL FITNESS ASIDE FROM
-- UN-FITNESS ASIDE FROM THE PRONG TWO CONSIDERATION. CHIEF JUSTICE
RABNER: STAY WITH YOUR ARGUMENT ON PRONG TWO FOR JUST A SECOND. COULD THIS COURT WRITE
AN OPINION THAT SAYS UNDER PRONG TWO JUDGES MAY CONSIDER EVIDENCE THAT'S SEPARATING THE
CHILD FROM THE RESOURCE FAMILY PARENT WOULD CAUSE SERIOUS AND ENDURING HARM TO THE CHILD?
NEHA GOGATE: UNDER PRONG TWO STH. ALEXANDER SHALOM: CHIEF
JUSTICE RABNER: YES. NEHA GOGATE: I THINK THAT THIS COURT CAN DO THAT. HOWEVER
-- CHIEF JUSTICE RABNER: DOESN'T THAT SEEM LIKE A QUITE STRAINED READING THAT
WE COULD TELL JUDGES TO DO PRECISELY WHAT THE LAURIE MOVED FROM PRONG TWO? NEHA
GOGATE: WELL, I WOULD INDICATE THAT THE GOAL WOULD BE NOT TO E-MAIL SIZE THAT EVIDENCE
IN PRONG TWO BUT TO EMPHASIZE THE FLEXIBILITY OF THE GUARDIANSHIP STATUTE. IN THAT FAMILY
CIRCUMSTANCES DO NOT EXIST IN PRONGS. THEY DON'T EXIST IN BOXES. CHILDREN'S CIRCUMSTANCES
DO NOT EXIST IN BOXES. SO TO THE EXTENT THAT CERTAIN EVIDENCE MAY BE NEEDED UNDER PRONG
TWO THAT'S RE-LATED TO THE CAREGIVER RELATIONSHIP, UNDERSTANDING THAT THE BOND
BETWEEN THE CHILD -- BETWEEN THE CHILD AND THE RESOURCE PARENT WOULD IN OF ITSELF NEVER
BE ABLE TO BE A BASIS SOLELY FOR TERMINATION OF PARENTAL RIGHTS, THAT THE OVERALL GOAL
OF THE FACT INTENSIVE INQUIRY THAT'S INVOLVED IN THE GUARDIANSHIP STATUTE WOULD ALLOW
THE COURT TO BE ABLE TO OVERLAP EVIDENCE AS NEEDED AND HAS BEEN INDICATED BY THIS COURT
AS A FUNCTION OF THE PRONGS. THAT THEY DO OVERALL. THE EVIDENCE MAY REQUIRE THAT.
JUSTICE FASCIALE: JUST TO STAY ON PRONG TWO FOR A MINUTE. THE WHOLE POINT
OF PRONG TWO IS WHETHER THE PARENT IS UNABLE OR UN-WILLING TO ELIMINATE THE HARM. G TALKS
ABOUT THE BEING ON THE PARENTAL FITNESS AND ELIMINATED THE SENTENCE THAT THE JUDGE MAY
CONSIDER WHAT'S HAPPENING WITH THE RESOURCE PARENTS. NEHA GOGATE: YES.
JUSTICE FASCIALE: OKAY. NEHA GOGATE: BUT I WOULD EXPAND ON THAT
TO INDICATE THAT IT WASN'T ADDED INTO THE STATUTE THAT IT MAY NOT CONSIDER THAT HARM.
AND IN WHAT HAS BEEN UNDERSTOOD IN THIS CASE TYPE AS THE -- WELL, THE EVIDENCE BEING ABLE
TO OVERLAP, THAT THAT EXPLICIT STATEMENT SHOULD HAVE BEEN MADE IF THAT WAS WHAT THE
LEGISLATURE'S INTENT WAS. AND THERE ARE INSTANCES WHERE UNDER PRONG TWO THE CAREGIVER
RELATIONSHIP MAY BE NEEDED IN ORDER TO DETERMINE THE PARENTS' FITNESS OR UN-FITNESS.
JUSTICE SOLOMON: HOW COULD THAT EVER BE RELEVANT TO THE PARENTS' FITNESS?
NEHA GOGATE: WELL, I WOULD TURN THE COURT TO THE M M CASE WHERE IN THAT CASE
THE CHILD HAD SPECIAL MEDICAL NEEDS AND THE TESTIMONY INCLUDED INFORMATION ABOUT THE
NEEDS THAT THE CHILD HAD AND THE CAREGIVER'S PARTICIPATION IN THOSE SERVICES.
JUSTICE PIERRE-LOUIS: THAT IS BEFORE THE AMENDMENTS. WHAT DOES THAT HAVE TO DO WITH
THE PARENTS UN-WILLINGNESS OR INABILITY TO ELIMINATE THE HARM TO THE CHILD? IT SOUNDS
LIKE YOU'RE -- IT SOUNDS LIKE WHAT YOU'RE TALKING IS A WHO'S THE BETTER PARENT SCENARIO,
WHICH IS NOT WHAT WE'RE SUPPOSED TO BE DOING. HOW WOULD THE BONDING EVER HAVE -- WHAT
-- I DON'T UNDERSTAND HOW THE FOCUS ON THE PARENT WOULD BE IMPACTED BY WHAT YOU'RE SAYING.
NEHA GOGATE: WELL, MY FOCUS WOULD NOT BE NECESSARILY ON THE BONDING PIECE
BUT OF CAREGIVER RELATIONSHIP IN A BIGGER SENSE IN TERMS OF THE CARE PHYSICALLY THAT THAT IS
REQUIRED OF THE PARENT IF THEY ARE TO ASSUME THE CARE OF THAT PARTICULAR CHILD. AND
IN THAT CASE JUST -- JUSTICE PIERRE-LOUIS: AGAIN, LOOKING AT THE PARENTS'
UN-WILLINGNESS OR INABILITY TO ELIMINATE THE HARM TO THE CHILD SEPARATE AND APART FROM
-- THAT'S SUPPOSED TO BE SEPARATE AND APART FROM WHAT IS HAPPENING WITH THE RESOURCE PARENT.
WOULDN'T YOU AGREE? NEHA GOGATE: UNLESS THEY -- JUSTICE
PIERRE-LOUIS: THE FOCUS ON THE PARENT NOW IN PRONG TWO. NEHA GOGATE: I WOULD
JUST DRAW THE DISTINCTION IN THAT IF THE CAREGIVER -- IF INFORMATION ABOUT WHAT THE
CAREGIVER'S CARE INCLUDES LIKE FOR A SPECIAL NEEDS CHILD, THE SERVICES, THE SPECIFIC SERVICES --
JUSTICE PATTERSON: THEIR WEEKLY THERAPY VISITS, WEEKLY DOCTORS VISITS WHICH
THE RESOURCE PARENT IS DOING, THIS PARENT HAS NO ABILITY TO CARRY ON THAT KIND OF LEVEL
OF CARE. IS THAT THE SORT OF THING YOU'RE TALKING ABOUT? NEHA GOGATE:
WELL, IN THE M M CASE, THE CHILD HAD A MUSCULAR DISORDER AND VERBAL APRAXIA, SO THE TESTIMONY
WAS REGARDING THOSE SPECIFIC SERVICES. IT WASN'T AS THOUGH THE EVIDENCE WOULD COME IN
TO SAY THAT ONE CAN DO IT OR ONE CANNOT DO IT. PERHAPS THE PARENT WOULD BE ABLE TO TAKE
ON THOSE SERVICES. BUT IT WAS PART OF THE COURT'S ANALYSIS UNDER PRONG TWO OF THE
FATHER IN THAT CASE, HIS ABILITY TO ASSUME THAT ROLE. AND IT WOULDN'T NECESSARILY BE RE-
LATED TO BONDING BUT IN TERMS OF THE ABILITY TO ASSESS THE CHILD'S CIRCUMSTANCES INTO THE
PARENTS ABILITY TO BE FIT TO CARE FOR IT. THAT PARTICULAR CHILD. JUSTICE
PIERRE-LOUIS: BUT AT THAT POINT PRONG TWO INCLUDED THAT SENTENCE THAT HAS NOW BEEN
DELETED. RIGHT? CORRECT? NEHA GOGATE: YES, THAT IS CORRECT. BUT I USE
THIS EXAMPLE TO ILLUSTRATE WHY IT WOULD BE NECESSARY TO ALLOW THAT TYPE OF EVIDENCE EVEN
NOW BECAUSE THAT CIRCUMSTANCE COULD OCCUR. JUSTICE PATTERSON: THAT SAME EVIDENCE
COULD GO IN UNDER PRONG FOUR, CORRECT? NEHA GOGATE: YES, IT WOULD BE ABLE
TO GO IN UNDER PRONG FOUR BUT IT SHOULD BE A CIRCUMSTANCE THAT IS EVALUATED OVERLAPPING
INTO PRONG TWO BECAUSE IT WOULD EN GAIL THE PARENTS ABILITY TO ASSUME TO BE FIT TO CARE
FOR THAT PARTICULAR CHILD. JUSTICE NORIEGA: WHY WOULD IT EVER HAVE TO BE
ABOUT THE RESOURCE PARENTS SPECIFICALLY? IF THE CHILD IS GETTING CERTAIN SERVICES, IF
THE CHILD HAS CERTAIN APPOINTMENTS, WHETHER IT'S THE RESOURCE PARENT OR SOMEONE ELSE WHO'S
TAKING THE CHILD TO THESE APPOINTMENTS, THE QUESTION IN PRONG TWO FOCUSES ON DIRECTLY
ON WHETHER THE PARENT IS WILLING OR UN-WILLING TO DO THESE THINGS. DOESN'T IT BUILD BACK
IN THAT COMPARISON IF -- IN INCORPORATING FACTS ABOUT WHAT THE RESOURCE PARTS ARE DOING
BECAUSE THAT IMMEDIATELY DRAWS TO MIND WHAT THE PARENT IS THE UNABLE TO DO AS COMPARED
TO THE RESOURCE PARENT. NEHA GOGATE: I WOULD SEE IT AS MORE SO THE ACTUAL
SERVICES THAT WOULD BE REQUIRED FOR THE CHILD AND HOW THOSE SERVICES ARE BEING OBTAINED
FOR THE CHILD. JUSTICE FASCIALE: HERE'S AN EXAMPLE OF A PARENT UN-WILLING,
A FINDING A FAMILY JUDGE WILL MAKE BASED ON EVIDENCE IN PRONG TWO. BACK TO MY
HYPOTHETICAL, A MOTHER WHO'S A HEROIN ADDICT. UN-WILLING. DOESN'T GET TREATMENT. SHE
REFUSES TO COOPERATE AND IS JUST SIMPLY UN-WILLING TO ELIMINATE THE HARM HER
ADDICTION THAT THE CHILD HAS WITH HER ADDICTION. THE UNABLE IS SHE GOES TO THE SUBSTANCE
ABUSE EVALUATION. SHE GOES FOR THE TREATMENT AND SHE KEEPS TESTING POSITIVE. THE WHOLE
FOCUS IS ON THE PARENT. THE PARENT's FITNESS AFTER THE AMENDMENT. SO I WOULD
EXPECT A FAMILY PART JUDGE TO BE FOCUSING AS G SAYS ON THE PARENTS' FITNESS NOT ON WHAT'S
HAPPENING -- AS OPPOSED TO CONSIDERING THE IMPACT ON SEVERING THE CHILD'S RELATIONSHIP
WITH THE RESOURCE PARENTS. FOCUSING ON THE PARENTS FITNESS. NEHA GOGATE:
IN THAT HYPOTHETICAL, YES, I THINK THAT THAT WOULD BE THE FOCUS. BUT THE POINT THAT I'M
TRYING TO MAKE IS THAT THAT DOESN'T NEED TO BE EVERYTHING THAT IS RELEVANT TO THE
DETERMINATION SHOULD BE PART OF THE EVIDENCE. AND IF IT DOES INVOLVE THE CHILD'S NEEDS
ARE IMPACTED -- IMPACT THE DETERMINATION AS TO THE PARENTS FITNESS OR THE DELAY IN
PERMANENCY ADDING TO THE HARM OF THE CHILD, THAT THE LAW SHOULD BE FLEXIBLE ENOUGH TO BE
ABLE TO ALLOW ALL OF THE FACTUAL NUISANCES THAT MAY OCCUR IN THESE CASES. AND JUST GIVEN
THE MYRIAD OF CIRCUMSTANCES CHILD FACE IN THESE CASES, THERE SHOULD BE FLEXIBILITY TO
CONSIDER ALL RELEVANT EVIDENCE WITHOUT TRYING TO CONFINE IT. CHIEF JUSTICE RABNER:
QUESTIONS, ANYONE? ANYTHING YOU'D LIKE TO ADD? WE HAVE YOUR POSITION. NEHA
GOGATE: IF I MAY JUST ONE EXTRA POINT REGARDING THE USE OF EXPERT EVIDENCE. I WOULD JUST
STRESS THAT IT'S IMPORTANT TO NOTE THAT THE USE OF EXPERT EVALUATIONS -- THE CONCLUSIONS
OF THE EXPERT ARE NOT KNOWN IN ADVANCE AND THOSE CONCLUSIONS MAY SUPPORT OR UNDERCUT A
PETITION FOR GUARDIANSHIP. IT REALLY DOES DEPEND ON THE FACTS. THE EXPERT EVIDENCE IS NOT
MEANT TO STACK THE CARDS IN FAVOR OF GUARDIANSHIP, BUT INSTEAD TO ALLOW THE
CHILDREN, WHO DO NOT STAND FROZEN IN TIME WHEN THEY WERE RE-MOVED FROM THEIR HOME TO BE
CONSIDERED IN THE ANALYSIS BY LOOKING AT THEIR CIRCUMSTANCES. AND THAT MAY INCLUDE MANY
THINGS. THEIR DEVELOPMENT, THEIR EXPERIENCES AND THEIR RELATIONSHIPS. AND IN SOME CASES
EXPERT EVIDENCE MAY BE THE BEST EVIDENCE THAT A CHILD CAN PRESENT TO SEEK A DENIAL OF
GUARDIANSHIP. AND GIVEN THAT CHILDREN HAVE THEIR OWN RIGHTS TO PERMANENT, SAFE AND STABLE
PLACEMENT, THAT RIGHT WOULD BE JEOPARDIZED IF THE COURT'S DECISION IS BASED ON AN ANALYSIS
THAT WOULD SWEEP AWAY POTENTIALLY SIGNIFICANT PARTS OF THEIR LIFE. AND WITH
THAT, IN SUM, I ASK THIS COURT TO HOLD THAT EVIDENCE OF THE CHILD'S CAREGIVER
RELATIONSHIPS MAY BE OFFERED AS PROOF IN GUARDIANSHIP PROCEEDINGS AND BECAUSE THE
AMENDED STATUTE INCLUDES NO BAR ON EVIDENCE AND THE COURT REQUIRES AN ARRAY OF EVIDENCE
TO CONDUCT ITS ASSESSMENT AND IN THIS MATTER BECAUSE THE RECORD SATISFIED THE REQUIREMENTS
FOR GUARDIANSHIP, THAT THE JUDGMENT BE AFFIRMED. CHIEF JUSTICE RABNER: THANK YOU,
COUNSEL. PROFESSIONAL MANDELBAUM, I'M GUESSING THERE IS LITTLE BETTER THAN
GETTING UP AT 4:15 P.M. PROF. RANDI S. MANDELBAUM: THE DECISION TO TERMINATE
PARENTAL RIGHTS IS AMONG THE MOST DIFFICULT DECISIONS A FAMILY PART JUDGE IS ASKED TO
MAKE. MAINTAINING FAMILY INTEGRITY AND AVOIDING FAMILY SEPARATION MUST BE A CENTRAL FOCUS.
IN FACT, THE LAW DICTATES THAT THE FOCUS MUST BE ON THE FITNESS OF THE PARENT AND EVIDENCE
OF THE CHILD'S RELATIONSHIP WITH A RESOURCE PARENT SHOULD NEVER BE OUTCOME DETERMINATIVE.
PETITIONS TO TERMINATE PARENTAL RIGHTS MUST BE SOUGHT ONLY IN EXTREME CIRCUMSTANCES
AND ONCE FILED MUST BE SPARINGLY GRANTED. YET, WHEN A TRIAL COURT JUDGE IS CONSIDERING
WHETHER TO GRANT SUCH A PETITION, THE COURT MUST BE ABLE TO CONSIDER ALL EVIDENCE AND
THE TOTALITY OF THE EVIDENCE AS THE APPELLATE DIVISION PANEL EMPHASIZED. THE ULTIMATE
QUESTION THAT THE COURT IS LOOKING AT IS WHETHER A CHILD'S INTEREST WILL BE SERVED BY
TERMINATING THE CHILD'S RELATIONSHIP WITH A PARENT OR PARENTS. AS SUCH, IT
WOULD BE IMPOSSIBLE FOR THE COURT TO FULLY CONSIDER THIS QUESTION IF IT WAS PRECLUDED
FROM CONSIDERING EVIDENCE OF THE CHILD'S RELATIONSHIP WITH THEIR RESOURCE PARENT.
DOING SO WOULD LITERALLY HAVE THE COURT COMPLETELY IGNORING A PERIOD OF TIME IN THE CHILD'S
LIFE. IN ESSENCE, REALITY FOR THE CHILD, CREATING A LEGAL FICTION. FOR SOME
CHILDREN THEY HAVE SPENT YEARS IN FOSTER CARE AS HAS BEEN ALLUDED TO THIS AFTERNOON AND
HOW CAN THIS BE COMPLETELY IGNORED. CONSIDERATION OF THE RELATIONSHIP BETWEEN THE
CHILD AND THE RESOURCE PARENT DOES NOT HAVE TO BE LIMITED TO ATTACHMENT THEORY AND ISSUES
OF PSYCHOLOGICAL SECURITY. YET NOT CONSIDERING THE CHILD'S RELATIONSHIP WITH ONE OR MORE
RESOURCE PARENTS AT ALL WOULD BE CONTRARY TO THE VAST MAJORITY OF PSYCHOSOCIAL RESEARCH
CONCERNED WITH ASSESSING THE WELL-BEING AND DEVELOPMENT OF CHILD. AS HAS BEEN
NOTED HERE THIS AFTERNOON, THERE ARE MANY ASPECTS HFT CHILD AND RESOURCE PARENT RELATIONSHIP
THAT THE COURT SHOULD BE ABLE TO CONSIDER, SUCH AS LENGTH OF TIME OF THE RELATIONSHIP,
THE CHILD'S SPECIAL NEEDS, THE RESOURCE PARENTS ABILITY TO ADDRESS THEM, AS JUSTICE PATTERSON
STATED, AND THE CHILD'S WISHES. O PR AND L S N.J. PROVIDE THAT RECENT AMENDMENTS
PRECLUDE ANY EVIDENCE OF HARM THE CHILD MIGHT SUFFER IF THE RELATIONSHIP WITH THE RESOURCE
PARENT IS SEVERED YET THERE IS NOTHING IN RECENT AMENDMENTS WHICH DICTATE RESULTS. WHETHER
THE TERMINATION WOULD NOT NOR HARM THAN GOOD IS CONSIDERED. THE STATUTORY AMENDMENTS
AS I THINK HAS BEEN DISCUSSED THIS AFTERNOON SOUGHT TO CREATE A PREFERENCE FOR PLACEMENT
WITH RELATIVES AND IN FAVOR OF FAMILY INTEGRITY. BUT IT IN NO WAY SOUGHT TO BAR ALL EVIDENCE
OF THE CHILD'S RELATIONSHIP WITH THE RESOURCE PARENT, INCLUDING PSYCHOLOGICAL EVIDENCE.
PAST DECISIONS OF THIS COURT CLEARLY INDICATE THAT EVIDENCE OF A CHILD
RELATIONSHIP WITH THEIR RESOURCE PARENT WAS CONSIDERED AT BOTH PRONGS TWO AND FOUR. IN
ADDITION, EVIDENCE OF THE CHILD'S RELATIONSHIP WITH THEIR SOURCE PARENT WAS PERMISSIBLE
WITHIN PRONG TWO PRIOR TO 1995 WHEN THE SENTENCE -- WHICH HAS NOW BEEN OMITTED -- WAS
ADDED. IT THEREFORE SHOULD REMAIN PERMISSIBLE WITHOUT THAT SENTENCE, ESPECIALLY WHEN
YOU'RE CONSIDERING THE PART OF PRONG TO THAT TALKS ABOUT DELAY IN PERMANENCY ADDING TO
THE HARM. HOWEVER, EVEN IF THIS COURT FINDS THAT THERE -- EVEN IF WE LIMIT
-- THE AMENDMENTS LIMIT A PRONG TWO ANALYSIS, WE ARE STILL LEFT WITH PRONG FOUR. WHICH IS
WHERE THE COURT ASSESSES THE ENTIRETY OF THE EVIDENCE. DESPITE O PR AND L S N.J.'S UN-
SUPPORTED EVIDENCE TO THE CONTRARY, THERE IS NOTHING IN THE 2020 AMENDMENTS THAT RESTRICTS
WHAT IS CONSIDERED AT PRONG FOUR OR LIMITS THE ANALYSIS IN PRONG FOUR TO EVIDENCE ONLY
BEEN CONSIDERED IN PRONGS ONE THROUGH THREE. ADDITIONALLY, PROHIBITING EVIDENCE OF HARM
THAT WOULD COME IN THE RELATIONSHIP BETWEEN THE CHILD AND RESOURCE PARENT ENDED BUT
PERMITTING OTHER EVIDENCE ABOUT THE RELATIONSHIP WITH THE RESOURCE PARENT, FOR EXAMPLE
WHEN THERE IS NOT A STRONG CONNECTION BETWEEN THE CHILD AND THE RESOURCE PARENT OR WHETHER
THE RESOURCE PARENT IS INTERESTED IN ADOPTING, WOULD PUT THE TRIAL COURT IN A POSITION
OF HAVING TO DETERMINE WHAT EVIDENCE CONCERNING THE CHILD AND THE RESOURCE PARENT IS
PERMISSIBLE AND WHAT IS NOT. FOR EXAMPLE, WOULD THE COURT NO LONGER BE PERMITTED TO HEAR
FROM THE CHILD BECAUSE THE CHILD MIGHT DISCUSS HOW THEY FEEL ABOUT LEAVING THE RESOURCE
HOME? OR WOULD THE COURT STILL BE ENCOURAGED TO HEAR FROM THE CHILD BUT WOULD HAVE TO
DISREGARD SOME OF WHAT THE CHILD STATED. PUTTING A COURT IN SUCH A POSITION IS NONSENSICAL
AND IS CLEARLY CONTRARY TO PAST AND RECENT LEGISLATIVE INTENT AS WELL AS TO THE COURTS
AUTHORITY TO DETERMINE WHAT IS IN THE CHILD'S BEST INTEREST. NOT CONSIDERING
SUCH EVIDENCE ALSO WOULD MAKE NEW JERSEY THE ONLY STATE IN THE COUNTRY WITH THIS LIMITATION.
AS OUR BRIEF DETAILED, ALL STATES PERMIT CONSIDERATION OF THE CHILD'S RELATIONSHIP
WITH THEIR RESOURCE PARENT. SOME EXPLICITLY STATE AS MUCH IN THEIR STATUTES AND OTHERS
PERMIT IT THROUGH GENERAL STATUTORY LANGUAGE AND CASE LAW. FINALLY, IT IS NOT
CLEAR WHETHER CONSIDERING EVIDENCE OF THE CHILD'S RELATIONSHIP ALWAYS -- WITH THEIR RESOURCE
PARENT ALWAYS FAVORS T PR. THERE ARE DEFINITELY TIMES WHEN CONSIDERING EVIDENCE OF A
CHILD'S RELATIONSHIP WITH ONE OR MORE RESOURCE PARENT MIGHT LEAD TO A FINDING THAT T PR
MIGHT NOT BE GRANTED. DYFS VERSUS L M AND DP. BUT THE BOTTOM LINE IS WE SIMPLY CANNOT
CREATE A TEST WHERE EVIDENCE IS LIMITED AND A COURT IS NOT PERMITTED TO CONSIDER THE
TOTALITY OF THE EVIDENCE. A STANDARD THAT LIMITS THE EVIDENCE THAT A COURT CAN CONSIDER
WILL NEVER BE A TEST THAT WILL ARRIVE AT THE BEST DECISION AS TO WHAT IS IN THE CHILD'S
INTEREST. WORSE YET, IT COULD CAUSE A TRIAL COURT TO MAKE AN ERRONEOUS DECISION.
CHIEF JUSTICE RABNER: QUESTIONS, ANYONE? THERE IS ONE ADVANTAGE OF GOING
THIS LATE IN THE DAY. JOHN A. ALBRIGHT: I JUST WANTED TO POINT OUT AS
JUSTICE ALBIN SAID IN (CASE CITED), G, BECAUSE THERE WAS A LOT OF DISCUSSION ABOUT G AGAIN,
IT'S AS OPPOSED TO CONSIDERING THAT HAS THE FULL FORCE OF LAW, BECAUSE THE FINDINGS AND
DECLARATIONS ONLY YIELD WHEN THERE'S A VARIANCE. I WOULD SUBMIT RESPECTFULLY THERE'S NO
VARIANCE IN THIS LAW. THE VARIANCE WOULD COME SIMPLY ALLOW THE DIVISION IF IT CANNOT
BRING A CASE BASED UPON SEPARATION HARM FROM FOSTER PARENTS UNDER PRONG TWO TO CONTINUE
TO ALLOW THE DIVISION TO PROVE A CASE UNDER PRONG FOUR. I WOULD RESPECTFULLY SUBMIT TO
THE COURT THAT THE ONLY READING OF THE STATUTE THAT BRINGS HARMONY BETWEEN THE FINES AND
DECLARATIONS UNLESS THEY'RE AT ODDS WITH THE PLAIN LANGUAGE CAN OUR READING, YOUR HONOR.
I WOULD ASK THAT THE APPELLATE DIVISION BE REVERSED