RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-0989-23 A-0990-23
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J.M. and T.T.P.,
Defendants-Appellants. _____________________________
IN THE MATTER OF THE GUARDIANSHIP OF H.P. and R.P., minors. _____________________________
Submitted January 14, 2025 – Decided February 6, 2025
Before Judges Gilson, Bishop-Thompson, and Augostini.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FG-17-0012-23. Jennifer N. Sellitti, Public Defender, attorney for appellant J.M. (James D. O'Kelly, Designated Counsel, on the briefs).
Jennifer N. Sellitti, Public Defender, attorney for appellant T.T.P. (Louis W. Skinner, Designated Counsel, on the briefs).
Matthew J. Platkin, Attorney General, attorney for respondent (Donna Arons, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief).
Jennifer N. Sellitti, Public Defender, Law Guardian, attorney for minors (Meredith Alexis Pollock, Deputy Public Defender, of counsel; David B. Valentin, Assistant Deputy Public Defender, of counsel and on the briefs).
PER CURIAM
In these consolidated appeals, J.M. (Jennifer) and T.T.P. (Thomas)
(collectively, defendants) appeal from a judgment terminating their parental
rights to their children, R.P. (Robert) and H.P. (Heather), and granting
guardianship of the children to the Division of Child Protection and Permanency
(the Division).1 Defendants argue that the Division failed to prove the four
prongs of the "best interests of the child" standard necessary for the termination
1 We use initials and fictitious names to protect privacy interests of the parties and the confidentiality of the record. See R. 1:38-3(d)(12).
A-0989-23 2 of their parental rights, particularly regarding prongs three and four. See
N.J.S.A. 30:4C-15.1(a). Defendants also contend that post-termination changes
in Robert's placement constitute changed circumstances requiring a remand for
reconsideration of the termination decision or other relief under Rule 4:50-1.
The Division and the children's Law Guardian urge that we affirm the judgment.
Having reviewed the record in light of the parties' contentions and the applicable
law, we affirm substantially for the reasons explained by Judge Mary K. White
in her oral decision placed on the record on November 13, 2023, and the written
amplification appended to the amended judgment dated December 3, 2023.
I.
The facts and evidence are detailed in Judge White's opinion and
amplification, which she rendered after a five-day trial. Accordingly, we
summarize some of the more relevant facts. Jennifer and Thomas are the
biological parents of Robert, who was born in July 2021, and Heather, who was
born in March 2023. Jennifer also has a daughter, A.L. (Amanda), who was born
in March 2013, and is currently in a kinship legal guardianship (KLG)
arrangement with Jennifer's mother, M.M. (Maddie). Amanda is not involved in
this appeal. Thomas has four other children, who are in the custody of their
mothers, and those children are also not involved in this appeal.
A-0989-23 3 Thomas and Jennifer's relationship has a history of domestic violence and
instability. The Division first became involved with the family in 2013, when it
received reports of abuse and neglect regarding Amanda, which were ultimately
not substantiated. Several years later, in June 2021, the Division once again
became involved when Jennifer reported to the police that Thomas had used
corporal punishment on Amanda and had assaulted her. Robert was born
approximately one month later.
Due to Thomas' history of domestic violence, the Division implemented a
safety protection plan requiring that Jennifer and Thomas be supervised when
co-parenting Robert and Amanda. The Division also offered the family
preservation services and asked both parents to complete psychological
evaluations. Following their evaluations, Jennifer and Thomas were referred for
individual therapy, co-parenting mediation, psychiatric evaluations, domestic
violence education, parenting skills training, and drug screens. Because of
violations of the safety protection plan and further episodes of domestic violence,
however, the Division removed Amanda and Robert from their care. After
Heather was born, she was also removed from her parents' care and placed with
a confidential family member, where she has remained.
A-0989-23 4 Unfortunately, Robert has had several placements since being removed
from defendants' care. Prior to trial, Robert had five placements, including one
with his maternal aunt, F.L. (Francesca). Thereafter, the Division informed us
that Robert was re-placed with Francesca in November 2023; however, one
month later she requested his removal, which led to his placement in a new pre-
adoptive resource home in March 2024. Most recently, the Division informed
us that Robert was "successfully" placed into another pre-adoptive resource
home in December 2024.
The guardianship trial was conducted over five, nonconsecutive days in
October 2023. Judge White heard testimony from three witnesses: Dr. James
Loving, an expert called by the Division; Martina Lewis, the Division's adoption
worker assigned to the case; and Francesca, Jennifer's sister.
Dr. Loving testified about the psychological and bonding evaluations he
conducted of Thomas, Jennifer, Robert, and Robert's then-resource parents. Dr.
Loving conducted two sets of evaluations: evaluations that occurred in
December 2022 and January 2023; and updated evaluations that occurred in
August 2023. At the time he conducted both sets of evaluations, Dr. Loving
understood that the Division's permanency goal for Robert was adoption.
A-0989-23 5 Concerning Thomas, Dr. Loving testified about his history of substance
abuse, prior history with the criminal justice system, and "really extensive and
severe history of domestic violence . . . especially with [Jennifer]." He also
testified concerning interactions with Division staff, where Thomas was
reportedly "hostile and threatening, and he repeatedly downplayed or denied
[those actions]." Dr. Loving diagnosed Thomas with "Intermittent Explosive
Disorder," which he described as "a pattern of poorly controlled, explosive,
angry, [and] sometimes aggressive behavior," and "Antisocial Personality
Disorder[] with narcissistic traits," which he described as "a personality style . .
. that involves basically disregarding other people and their rights and their
safety." Based on his evaluations, Dr. Loving opined that "there is a high risk of
emotional and physical harm if [Robert] were to be reunified with [Thomas]."
More specifically, Dr. Loving opined that:
[T]here is an extremely high risk for domestic violence here that [Robert] would be exposed to if he was under [Thomas'] care or his custody. That would place [Robert] at risk of being physically hurt and it would also place him at risk of having emotional problems related to being exposed to domestic violence.
As to Jennifer, Dr. Loving noted "important differences between what she
said to [him] versus what [had] been reported collaterally." Specifically, when
Dr. Loving asked her about the domestic violence, she said that "there had been
A-0989-23 6 one incident [during] their relationship when [Thomas] had pushed her, and that
was the only physical altercation or physical abuse throughout their
relationship." Following the testing portion of the evaluation, Dr. Loving
diagnosed Jennifer with "Major Depressive Disorder and Dependent Personality
Traits." Dr. Loving ultimately opined that "[t]here's an extremely high risk for
domestic violence here and that's true if [Robert] were to be under [Jennifer's]
custody or care." More specifically, Dr. Loving stated that:
The most likely scenario here is that [Jennifer] and [Thomas] remain in a relationship or at least remain involved with each other in some capacity. And as long as they do, there is going to be an extremely high risk for domestic violence. And [Robert] would be at risk for physical harm and also at risk for emotional harm if he were under her care [or] custody, for the same reasons I talked about earlier.
Following his updated evaluations of defendants, Dr. Loving's original
impressions remained largely the same. Moreover, Dr. Loving stated that his
concerns had increased due to a new incident of domestic violence following a
parenting class.
With regards to the bonding evaluations, Dr. Loving described Robert as
being "passively receptive" to Jennifer, meaning that "[h]e was tolerating her
interactions but he was also doing nothing to engage with her." In contrast, Dr.
Loving found that Robert "was more expressive and interactive with his father ."
A-0989-23 7 Following the first bonding evaluation, Dr. Loving described Robert "as having
a weak attachment with [Jennifer] [and] a weak to moderate attachment with
[Thomas]." Following the second bonding evaluation, Dr. Loving described
Robert as having "a moderate/moderately strong attachment to [Thomas] . . . a
bit stronger than what [he] described before." Nonetheless, Dr. Loving
concluded that "[Robert] is at low risk of long-term emotional harm if his
relationships with his mother or his father were to be cut off." He noted that
Robert was "showing signs of [the] situation taking an emotional toll on him,"
and recommended that Robert be placed with a permanent caregiver or family as
soon as possible.
Martina Lewis testified about the Division's involvement with the family,
including efforts and steps the Division had made to assist defendants. She
testified that after the Division began providing services, incidents of domestic
violence continued to occur between Jennifer and Thomas. Additionally, she
explained that Jennifer did not maintain consistent visitation with the children
following their removal. Thomas, in contrast, consistently visited both children,
but had repeated confrontations with Division workers, including threatening
workers and announcing that he no longer wanted to visit his children.
A-0989-23 8 Lewis also detailed the Division's efforts to place the children with other
family members. She testified that the Division assessed Maddie, Jennifer's
mother, "more than once." Maddie initially expressed interest in a KLG
arrangement with Robert, but "[a]fter moving into [a] bigger apartment, it was
deemed that she could not have [Robert] because [her] landlord would not add
anyone onto the lease." Thus, Maddie effectively "ruled herself out."
Lewis also discussed Francesca, Jennifer's sister, with whom Robert had
been placed with for "roughly . . . two months." Francesca had initially asked
for Robert's removal following an incident where Thomas "had come to her home
cursing, screaming, demanding to see [Robert], and where the police had to be
called." Notwithstanding, Lewis noted that if Francesca were to approach the
Division for custody of Robert, they would reassess her.
Based on that testimony, as well as other evidence submitted at trial, Judge
White made extensive findings of facts and conclusions of law. The judge found
that both the Division's witnesses were credible, but in varying degrees. Judge
White found Dr. Loving to be a "highly credible" witness. She also found that
"Lewis [was] a credible witness," but had concerns regarding Lewis' view of
Francesca. The judge did not make any express findings concerning Francesca's
credibility.
A-0989-23 9 In her amplification, Judge White detailed her review of the documents
admitted into evidence. Based on that unrebutted evidence, Judge White found
that both Jennifer and Thomas had a history of experiencing housing instability.
She also found there was credible evidence that Thomas had committed acts of
domestic violence against Jennifer. Moreover, the judge found that Thomas had
difficulty controlling his anger and that his outbursts had impeded the Division's
efforts to reunite Thomas with his children. Judge White also noted reports that
Jennifer had twice been hospitalized for psychiatric care and that she had not
established stability.
Judge White then found that the Division had proven each of the four
prongs of the children's best-interests standard by clear and convincing evidence.
Addressing prong one, Judge White found that the parental relationship had and
would continue to endanger the children's safety, health, and development. In
her amplification, she detailed the instability of both Jennifer and Thomas,
including repeated incidents of domestic violence. The judge found that despite
the Division's attempts to implement "every format of safety plan; in-house . . .
skilled social workers, who were providing coaching, supervised visits and
coaching on life and just stabilizing financial and other matters ," the safety
protection plans continued to be violated, and the domestic violence continued
A-0989-23 10 to occur. The judge also found that this instability and ongoing domestic
violence placed the children at risk.
Turning to the second prong, Judge White found that the parents were
unwilling or unable to eliminate the harm facing their children. The judge
specifically found that, although the parents were aware of the volatile nature of
their relationship, they wanted to continue to "parent together, even though their
relationship was one of a constant risk of violence to [Jennifer] and to any
children in their care, just from crossfire injury or observing all that instability."
The judge also noted that Jennifer had shown little interest in visiting her
children and had missed most of the visits arranged by the Division.
Addressing prong three, Judge White first found that the Division had
made reasonable efforts to provide services to the parents. Those services
included parenting classes, domestic violence avoidance training, evaluations,
and therapy. Despite those various services, both Jennifer and Thomas continued
to engage in activities that put their children at risk of substantial harm. Indeed,
the judge found that Thomas' ongoing inability to control his anger undercut the
beneficial impact of many of the services provided to him.
Second, the judge found that the Division had made "reasonable efforts to
be attuned to the family" and to try to place the children with family members.
A-0989-23 11 In her amplification, the judge found that Robert had been moved from two
family placements because of Thomas' disruptive behavior and that other non-
family placements had also been negatively impacted. Thus, Judge White found
that Thomas' improper behavior was "the cause or a major contributing cause to"
Robert's placements being changed four times. The judge further noted that
"[n]one of the relatives that were . . . interviewed to take care of [Robert] . . .
wanted to live with the risk of [Thomas'] behavior."
Lastly, addressing prong four, Judge White found that the termination of
defendants' parental rights would not do the children more harm than good. In
reaching that conclusion, the judge relied on the unrebutted testimony of Dr.
Loving. Judge White acknowledged that "Robert [had] been moved now four
times and that [those movements] place[d] him at some risk," but found the
changes in his placement were "not because of a condition of the child . . . [but]
because people [were] afraid of [Thomas]." The judge also recognized that she
was reaching this determination even though Robert's permanency plan was
unsettled.
On November 13, 2023, Judge White entered a judgment awarding
guardianship of Robert and Heather to the Division. She later amended the
judgment on December 3, 2023, to include an amplification of her decision. In
A-0989-23 12 her amplification, Judge White stated that her judgment was "not intended to be
an obstacle to the Division consenting, as in the best interest of [Robert], to either
adoption of [Robert] by family member [Francesca] . . . or to entry [of] [KLG] .
. . with [f]amily member [Francesca]."
II.
On appeal, Jennifer and Thomas contend that the Division failed to prove
the four prongs of the best interests of the child standard necessary for the
termination of their parental rights. See N.J.S.A. 30:4C-15.1(a). Particularly,
they argue that the trial court erred in failing to assess KLG with Maddie or
Francesca as an alternative to termination of their parental rights. In addition,
they assert that post-trial events concerning Robert's placement constitute
changed circumstances requiring reconsideration of the decision to terminate
their parental rights or entitling them to other relief under Rule 4:50-1.
1. The Record Does Not Support Defendants' Arguments.
A review of the evidence presented at trial establishes that all of Judge
White's findings concerning the four prongs are supported by substantial and
credible evidence. N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 448
(2012). Moreover, Judge White correctly summarized the law and correctly
applied her factual findings to the law. See N.J. Div. of Child Prot. &
A-0989-23 13 Permanency v. P.O., 456 N.J. Super. 399, 407 (App. Div. 2018). In that regard,
our Supreme Court has recognized: "In a termination of parental rights trial, the
evidence often takes the form of expert opinion testimony by psychiatrists,
psychologists, and other mental health professionals." N.J. Div. of Child Prot.
& Permanency v. R.L.M., 236 N.J. 123, 146 (2018). Judge White properly
relied, in part, on the unrebutted testimony of Dr. Loving, who conducted several
evaluations and had factual bases for his opinions.
Regarding prongs one and two, Thomas argues that "[he] never inflicted
actual harm upon Robert or Heather, nor placed them in a risk of harm." Our
Supreme Court, however, has made clear that the harm need not be physical, as
"[s]erious and lasting emotional or psychological harm to children as the result
of the action or inaction of their biological parents can constitute injury sufficient
to authorize the termination of parental rights." In re Guardianship of K.L.F.,
129 N.J. 32, 44 (1992).
At trial, Dr. Loving credibly opined that the ongoing domestic violence
between Thomas and Jennifer posed "a high risk of emotional and physical harm"
if the children were to be reunited with either Jennifer or Thomas. Further, Lewis
testified that such violence continued to occur after the Division began providing
services to the family. Unfortunately, both Jennifer and Thomas demonstrated
A-0989-23 14 an unwillingness or inability to eliminate the high risk of harm by continuing to
express their desire to parent together. Moreover, Jennifer never demonstrated
the ability to provide appropriate housing and stability for the children.
Concerning Thomas, Judge White found that he had ongoing anger management
issues that would prevent him from being a stable parent. The judge also noted
Thomas' inability to find stable housing and circumstances that would support
the children.
Both Jennifer and Thomas focus most of their arguments on prong three,
contending that the Division failed to make reasonable efforts to provide services
or consider alternatives to the termination of their parental rights. As an initial
matter, Judge White found, and the record shows, that the Division provided
various services, including "every format of [a] safety plan," in-house visits from
social workers, supervised visits with the children, life coaching, and various
forms of other support, including financial assistance, all designed to stabilize
the family.
Thomas and Jennifer further argue that Judge White overlooked recent
amendments to the law concerning KLG and failed to consider KLG
arrangements with Maddie or Francesca as an alternative to the termination of
their parental rights. Effective July 2021, various sections of statutes concerning
A-0989-23 15 child protective services were amended. See L. 2021, c. 154. The Legislature
declared "[k]inship care is the preferred resource for children who must be
removed from their birth parents because use of kinship care maintains children's
connections with their families." L. 2021, c. 154, § 1. Consistent with that
intent, the Legislature made several amendments (the 2021 amendments) to the
Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7, including elimination
of the requirement that adoption of the child be "neither feasible nor likely"
before a court may appoint a guardian. L. 2021, c. 154, § 4; N.J.S.A. 3B:12A-
6(d)(3). Accordingly, Jennifer and Thomas argue that Judge White erred by
failing "to consider KLG as an obvious available alternative to [the] termination
of [their] parental rights in violation of the law."
In amending the Kinship Legal Guardianship Act, the Legislature was not
foreclosing adoption. Instead, it was emphasizing the need for consideration of
kinship caregiving. See N.J. Div. of Child Prot. & Permanency v. D.C.A., 474
N.J. Super. 11, 27, 29 (App. Div. 2022), aff'd, 256 N.J. 4 (2023) (acknowledging
that the 2021 amendments were "intended to reflect a preference for viable
kinship guardians and fit parents over unrelated foster caretakers," but affirming
the trial court's determination to terminate parental rights where "no alternative
familial guardian was feasible").
A-0989-23 16 Here, both the Division and Judge White considered KLG with Maddie
and Francesca as alternatives to the termination of defendants' parental rights.
As Judge White properly found, however, "[n]one of the relatives that were . . .
interviewed to take care of [Robert] . . . wanted to live with the risk of [Thomas']
behavior."
Regarding Maddie, Lewis testified that the Division had explored Maddie
"more than once" as a placement option for the children. It was determined,
however, that Maddie could not have Robert because her landlord would not
allow her to have another person in her apartment. Additionally, when speaking
to the Division about a potential KLG arrangement, Maddie repeatedly expressed
concerns about interacting with Thomas for eighteen years and explained that he
was restricted from her home because of a no-contact order protecting Amanda.
As to Francesca, Thomas alleges that "[d]espite her willingness and ability
to care for Robert, she was improperly and unjustly dismissed [from
consideration]." The record rebuts that contention. In her amplification, Judge
White stated that her judgment was not intended to be an obstacle to the Division
consenting to either the adoption of Robert by Francesa or to the entry of KLG
with Francesca. As such, following the guardianship trial, the Division re-placed
Robert with Francesca. Unfortunately, approximately one month later, in
A-0989-23 17 December 2023, Francesca again asked that Robert be removed. Accordingly,
we reject defendants' arguments as to prong three.
Lastly, under the fourth prong, Thomas and Jennifer contend that Judge
White's findings have been undermined by post-termination changes in Robert's
placement. In making the prong four determination, however, Judge White
appropriately relied on Dr. Loving's expert opinion and testimony that the
termination of parental rights would not do the children more harm than good.
In reaching his expert opinion, Dr. Loving expressly acknowledged:
[S]elect home adoption brings a new layer of uncertainty for Robert: both in terms of identifying a prospective adoptive home and also identifying exactly how long it will take for him to join that home. However, even with these concerns in mind, it is my opinion that this is still a safer, healthier, lower-risk option than continuing to pursue reunification with his parents.
We acknowledge that Robert's numerous placements and lack of a clear
permanency plan are troubling. Nevertheless, when Judge White made her
findings supporting the termination of defendants' parental rights, she was aware
that Robert was not in a permanent placement. Accordingly, Judge White
appropriately focused on Robert's need for permanency and found that neither
Jennifer nor Thomas had the ability to safely parent him at present or in the
foreseeable future. Significantly, Judge White found that there was no viable
A-0989-23 18 family-related placement for Robert primarily because Thomas had "scared"
those relatives. In short, Judge White's finding that the termination of
defendants' parental rights would not do the children more harm than good was
based on her findings that both Thomas and Jennifer had significant issues that
prevented them from being suitable parents. In making those findings, Judge
White relied on Dr. Loving's unrebutted testimony that the termination of both
parents' rights was a "safer, healthier, lower-risk option than continuing to pursue
reunification with" either Jennifer or Thomas.
2. Defendants Are Not Entitled to Other Relief Under Rule 4:50-1.
Rule 4:50-1 permits a court to grant relief from a final judgment when
there are reasons to justify that extraordinary remedy. See In re Guardianship of
J.N.H., 172 N.J. 440, 473-74 (2002). Relief under Rule 4:50-1 "should be
granted sparingly." Ibid. Our Supreme Court has explained that relief under
Rule 4:50-1 is available in a termination of parental rights case, but that the
primary focus is on the child's best interests. Id. at 474-75.
The Supreme Court has adopted a two-part test that must be satisfied
before a judgment can be reopened. Id. at 473-75; State, Div. of Youth & Fam.
Servs. v. T.G., 414 N.J. Super. 423, 434 (App. Div. 2010). First, the moving
party must present evidence of changed circumstances. J.N.H., 172 N.J. at 473.
A-0989-23 19 Second, the moving party must show that it is in the best interests of the children
to set aside the judgment of guardianship. Id. at 474-75 (where the Court
explained that "the notion[s] [of] stability and permanency for the child are
paramount").
Neither Jennifer nor Thomas have demonstrated that it is in Robert's best
interests to vacate the amended judgment or to remand for a hearing under Rule
4:50-1. In making our ruling, however, we point out that nothing in this opinion
would preclude either Jennifer or Thomas from moving under Rule 4:50-1 if the
circumstances concerning Robert's placement continue to be unstable and Robert
remains without a viable permanency plan. In noting that a motion under Rule
4:50-1 could still be raised, we also caution that such a motion should not be
brought for some period of time because the Division's guardianship should be
focused on achieving permanency for Robert.
In short, the post-termination changes in Robert's placement, although
unfortunate, do not undermine the trial court's rationale for concluding that
termination would not do him more harm than good. Accordingly, they do not
constitute changed circumstances that would require a remand for
reconsideration of the termination decision or other relief under Rule 4:50-1.
Affirmed.
A-0989-23 20