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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 NO. A-3688-22
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
L.C.R.,
Defendant-Appellant/ Cross-Respondent,
and
R.A.R.,
Defendant. ___________________________
IN THE MATTER OF THE GUARDIANSHP OF M.I.R., A.R.R., and M.C.R., minors,
L.G.R., a minor,
Cross-Appellant. ___________________________
Submitted October 7, 2025 – Decided November 7, 2025
Before Judges Sumners and Susswein.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-0026-22.
Jennifer N. Sellitti, Public Defender, attorney for appellant/cross-respondent L.C.R. (Beth Anne Hahn, Designated Counsel, on the briefs).
Matthew J. Platkin, Attorney General, attorney for respondent Division of Child Protection and Permanency (Janet Greenberg Cohen, Assistant Attorney General, of counsel; Julie B. Colonna, Deputy Attorney General, on the brief).
Jennifer N. Sellitti, Public Defender, Law Guardian, attorney for minor M.I.R. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Jennifer M. Sullivan, Assistant Deputy Public Defender, of counsel and on the brief).
Jennifer N. Sellitti, Public Defender, Law Guardian, attorney for minor A.R.R. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
Jennifer N. Sellitti, Public Defender, Law Guardian, attorney for minor/cross-appellant L.G.R. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Damen J. Thiel, Designated Counsel, on the brief).
A-3688-22 2 PER CURIAM
Defendant L.C.R. (Lucy) 1 appeals Family Part orders terminating her
parental rights to three of her four children. The orders were issued following a
four-day guardianship trial and a subsequent remand to address a change in
circumstances involving the placement of one of the children. After reviewing
the record in light of the governing legal principles, we affirm the trial court's
determination that the Division of Child Protection and Permanency (Division)
proved by clear and convincing evidence all four prongs of the statuto ry best
interests test.
I.
We presume the parties are familiar with the pertinent facts and procedural
history, which we need only briefly summarize. Lucy has four children: Molly
(born July 2011); twins Amy and Luke (born October 2012); and Max (born
November 2014).
1 We use pseudonyms for all parties to maintain the confidentiality of these proceedings. R. 1:38(d). We rely on the pseudonyms used in defendant's brief.
A-3688-22 3 The family has a lengthy history of involvement with the Division,
including the first Dodd 2 removal in December 2012. The underlying neglect
case stems from two subsequent Division removals occurring in June 2019 and
October 2020. In June 2019, the children were removed due to reports that they
were passengers in a hit-and-run accident in a car driven by Lucy's boyfriend,
Mark; had slept overnight in the car; were unsupervised outside the home; and
were absent from school without excuse. Additionally, police found drug
paraphernalia in the car and Lucy's home. The second removal occurred in
October 2020, when, following reports that Lucy did not pick the children up
from a sleepover the night before, police found heroin and drug paraphernalia
in Lucy's home.
On October 5, 2020, the Division filed a verified complaint for the care
and custody of the children. The court granted the Division's application, and
the children were placed in the care of Tonya, Lucy's cousin, where they
remained during the course of the guardianship proceedings. Lucy and Tonya
have a hostile relationship. The court granted Lucy supervised visitation with
the children, which continued throughout these proceedings.
2 A "Dodd removal" is an emergency removal of a child from the custody of a parent without a court order, as authorized by N.J.S.A. 9:6-8.29, a provision included within the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. A-3688-22 4 On July 23, 2021, the Division filed a complaint seeking to terminate the
parental rights of Lucy and Ryan, the children's biological father, to free the
children for adoption by Tonya and her husband. The guardianship trial was
convened over the course of four non-consecutive days in March and April 2023.
On June 30, 2023, the court entered an order of guardianship to Tonya,
terminating Lucy's and Ryan's 3 parental rights to all four children. The trial
court issued a written opinion on July 27, 2023, explaining the reasons for its
conclusion that the Division established the four prongs for termination under
N.J.S.A. 30:4C-15.1(a). The court made credibility findings, concluding that
the testimony presented by the Division, including expert testimony, was
credible. Defendant presented no witnesses at trial.
The court found, by clear and convincing evidence, that with respect to
the first prong of the four-part best interests test, the children's safety, health,
and development have and will continue to be endangered by the parental
relationship. The court concluded that Lucy "failed to sufficiently and
sustaina[bly] resolve the issues that led to the multiple removals." In reaching
that conclusion, the court noted her substance abuse history and highlighted her
3 During the guardianship trial, Ryan surrendered his parental rights and is not a party to this appeal. A-3688-22 5 decisions with respect to romantic partners that were "to the detriment of the
health, safety, and wellbeing of her children." The court found that after each
removal, Lucy complied with services and achieved sobriety, only to revert to
her old behavior, resulting in the children having to be removed again. The
court also found the children felt unsafe in Lucy's care.
With respect to the second prong, the court determined that the Division
proved that Lucy was unwilling and unable to remedy the issues that led to the
children's removal and that delaying permanency would further harm the
children. The court credited Lucy for her periodic compliance with the Division,
her completion of parenting classes, and her progress in substance abuse
treatment. The court nonetheless found that she "has continuously been unable
to eliminate the harms that put her children at risk." The court highlighted that
she repeatedly placed her own needs and her boyfriend's needs above the needs
of the children, citing as an example that she had cancelled a visit with the
children to spend time with Mark.
With respect to the third prong, the court determined that the Division
made reasonable efforts to provide services to both parents, including supervised
visits, various evaluations, counseling referrals, and drug testing. The court
A-3688-22 6 concluded that the failure to achieve reunification was due to Lucy's failure to
make sufficient progress.
The court also concluded with respect to the third prong that there were
no alternatives to termination. The court found that Tonya had made an
informed decision that she preferred adoption to kinship legal guardianship
(KLG) based on her view that adoption would provide the children with closure
and security, whereas KLG would leave the children open to uncertainty and
continued litigation. The court also noted Tonya's willingness to facilitate
visitation.
Finally, the court found that prong four also supported termination,
concluding that termination would not do more harm than good to the children.
In reaching this conclusion, the court accepted the Division's expert's evaluation.
The court also noted that none of the children wanted to be around Mark and
expressed a desire for Lucy to end her relationship with him, yet the evidence
presented demonstrated "reasonable suspicions" that Lucy was still living with
and involved with Mark. Although the court credited Lucy's progress and her
"resilience" throughout the Division's involvement, it ultimately concluded that
reunification was not in the children's best interests as there was a strong
likelihood of future removal. The court added that Lucy could not care for the
A-3688-22 7 children on her own, did not have a sufficient support system to assist her, and
could not be relied upon to perform the regular and expected functions of care
and support or provide stability for her children.
The judgment of guardianship terminating Lucy's parental rights to all
four children was entered in June 2023. Lucy subsequently appealed and Luke
filed a cross-appeal in support of his mother's appeal. In November 2023, while
the appeal was pending, the Division removed Max from Tonya's home and
placed him with his maternal grandfather, G.B. We granted Lucy's application
for a limited remand to address this development.
Following a remand hearing, on June 7, 2024 the court entered an
amended order of guardianship and termination of parental rights for Molly,
Amy, and Luke. The court issued a separate written opinion on June 14, 2024
concluding that Max's change in placement did not impact its findings with
respect to the best interests standard.
Specifically, the court found that Max's change in placement did not alter
its earlier finding that there were no viable alternatives to termination of parental
rights. The court on remand also reaffirmed its prior finding that termination
would not do more harm than good. The court referred to the expert's opinion
that disruption in placement would be detrimental to the older children, would
A-3688-22 8 exacerbate their cognitive and emotional symptoms, and impair their overall
functioning. The court acknowledged that the children were impacted by Max's
removal but agreed with the Division's expert that this did not alter their need
for permanency and stability.
Accordingly, in June 2024, the trial court issued an amended judgment of
guardianship, affirming the termination of parental rights with respect to Molly,
Amy, and Luke. The court dismissed Max from the guardianship proceeding
and approved a permanency plan of kinship legal guardianship for him with G.B.
This appeal followed. Lucy argues the trial court erred in its assessment
of the N.J.S.A. 30:4C-15.1(a) factors by overlooking her maintained sobriety
and stabilized housing, by not adequately exploring alternatives to termination,
by failing to consider Tonya's shortcomings when assessing whether
reunification would result in more harm than good, and by failing to consider
how the children's change in placement would impact their ability to maintain
sibling contact in the future. Luke's cross-appeal joins Lucy's first three
arguments.
II.
We begin our analysis by acknowledging the legal principles governing
this appeal. The scope of appellate review in a termination of parental rights
A-3688-22 9 case is limited. N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605
(2007). "Appellate courts must defer to a trial judge's findings of fact if
supported by adequate, substantial, and credible evidence in the record." Ibid.
The trial court's determination of the underlying facts and the conclusions
flowing therefrom are afforded deference unless the court "went so wide of the
mark that a mistake must have been made." N.J. Div. of Youth & Fam. Servs.
v. M.M., 189 N.J. 261, 279 (2007). A reviewing court must also defer to the
trial court's credibility determinations and to its expertise in the field of domestic
relations. N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014).
As a result, a trial court's factual findings should not be disturbed by an appellate
court "unless they are so wholly unsupportable as to result in a denial of justice."
In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). However, the trial
court's interpretation of the law and legal findings are reviewed pursuant to a de
novo standard. Ibid.
Parents have a constitutionally protected right to raise their children. N.J.
Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 447 (2012); N.J. Div. of
Youth & Fam. Servs. v. A.W., 103 N.J. 591, 599 (1986). However, in some
circumstances, a parent's rights must yield to the State's parens patriae obligation
to protect a child from physical or emotional harm. F.M., 211 N.J. at 447. Thus,
A-3688-22 10 the State has limited power to terminate parental rights to protect the welfare of
the children "in circumstances where the parent is unfit, or the child has been
harmed," N.J. Div. of Child Prot. & Permanency v. D.C.A., 474 N.J. Super. 11,
24 (App. Div. 2002), and when such action is in the best interests of the child,
A.W., 103 N.J. at 599, 602-03.
To terminate parental rights, N.J.S.A. 30:4C-15.1(a) requires that the
Division establish:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside of the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
The Division must prove each of the four elements of the best interests of the
child test by clear and convincing evidence. N.J. Div. of Youth & Fam. Servs.
v. P.P., 180 N.J. 494, 506 (2004). The four prongs "are not discrete and separate;
A-3688-22 11 they relate to and overlap with one another to provide a comprehensive standard
that identifies a child's best interests." In re: Guardianship of K.H.O., 161 N.J.
337, 348 (1999). The court should only sever a parent's relationship with their
child when the "proof of parental unfitness is clear." F.M., 211 N.J. at 453.
When the court evaluates the statutory factors, it should emphasize the
child's need for a permanent and stable home "without undue delay." In re
Guardianship of D.M.H., 161 N.J. 365, 385 (1999) (citing K.H.O., 161 N.J. at
356-58). It should thus determine "not only whether the parent is fit, but also
whether he or she can become fit within time to assume the parental role
necessary to meet the child's needs." N.J. Div. of Youth & Fam. Servs. v. R.L.,
388 N.J. Super. 81, 89 (App. Div. 2006).
III.
We first address Lucy's contention that the trial court erred in its
assessment of the first two prongs of the bests interests test, codified in N.J.S.A.
30:4C-15.1(a)(1) and (2). She argues the court improperly focused on her past
addiction and housing instability, both of which she claims to have addressed.
A-3688-22 12 She also contends the court improperly concluded the children felt unsafe in her
care.4
Luke does not dispute the court's finding as to prong one, but argues the
court erred in finding prong two—that Lucy was unwilling or unable to eliminate
harm—given her progress. He seeks reunification, or in the alternative, KLG
with the resource parents so he can maintain his relationship with Lucy.
The first two prongs, N.J.S.A. 30:4C-15.1(a)(1) and (2), constitute the
"harm requirement" and overlap. N.J. Div. of Child Prot. & Permanency v. T.D.,
454 N.J. Super. 353, 380 (App. Div. 2018) (quoting D.M.H., 161 N.J. at 379).
"Therefore, 'evidence that supports one informs and may support the other as
part of the comprehensive basis for determining the best interests of the child.'"
Ibid. (quoting D.M.H., 161 N.J. at 379). As to prong one, "[w]hen the condition
or behavior of a parent causes a risk of harm, such as impermanence of the
child's home and living conditions, and the parent is unwilling or incapable of
obtaining appropriate treatment for that condition, the first subpart of the statute
has been proven." N.J. Div. of Youth & Fam. Servs. v. H.R., 431 N.J. Super.
212, 223 (App. Div. 2013) (citing F.M., 211 N.J. at 450-51).
4 It bears noting that Lucy does not seek reunification, but rather reversal of the termination decision and remand for an alternative placement plan for the children, with all the children remaining in their current placements. A-3688-22 13 Lucy contends the court erred in weighing her substance abuse and
housing instability against her, arguing that she has been sober since July 2021,
and has maintained stable employment and housing. However, the court's
finding with respect to harm was not based solely on substance abuse and
housing instability but rather on a confluence of factors, including her continued
cohabitation with Mark, her non-compliance with all recommended services, her
overall history with the Division, her poor decision making and lack of insight,
and the adverse impact of all these circumstances on the children, particularly
their three removals. The law is well-settled that consideration of the
"cumulative effect, over time, of harms arising from the home life provided by
the parent" is appropriate when assessing prong one. M.M., 189 N.J. at 289; see
also P.P., 180 N.J. at 506 ("Rather than focusing on a single or isolated harm,
the standard may be triggered by an accumulation of harms over time") (citing
K.H.O., 161 N.J. at 348). We add that a court may consider "a parent's
association with third-parties" and whether "those associations harm[ed] the
child." M.M., 189 N.J. at 289. This includes a parent's failure to protect the
child from abuse and/or witnessing domestic violence in the home. N.J. Div. of
Child Prot. & Permanency v. D.C.A., 256 N.J. 4, 15, 28 (2023) (prong one
satisfied based on numerous domestic violence incidents in the home, including
A-3688-22 14 in the presence of the children, which threatened their health, safety, and
development); N.J. Div. of Youth & Fam. Servs. v. B.G.S., 291 N.J. Super. 582
(App. Div. 1996) (prong one satisfied by mother's inability to care for the child
and her failure to protect him from her boyfriend).
Further, the court's finding on prong one also was based on the length of
the children's removal from the home, and the Division's involvement with the
family for approximately ten years. A child's lack of permanency based on
prolonged and repeated placements can constitute harm sufficient to satisfy
N.J.S.A. 30:4C-15.1(a)(1). N.J. Div. of Youth & Fam. Servs. v. C.S., 367 N.J.
Super. 76, 113 (App. Div. 2004). Here, the older children experienced three
removals, and, at the time of the guardianship hearing, had resided with Tonya
for six out of the past ten years.
In sum, there is adequate support for the trial court's finding that the
repeated removals adversely impacted the children, insofar as they all were
diagnosed with "adjustment disorder associated with trauma." We thus conclude
there was sufficient credible evidence to support the court's finding under prong
one that Lucy's actions harmed the children.
We likewise are unpersuaded by Lucy's contentions with respect to the
second prong. As noted, the harms identified by the court include Lucy's
A-3688-22 15 substance abuse, past domestic violence in the home, poor parental judgment,
housing instability, and inability to meet the children's needs, all of which
created an ongoing risk of removal. We acknowledge that Lucy appears to have
eliminated or at least ameliorated some of these harms by her progress in
treatment. Cf. Matter of A., 277 N.J. Super. 454, 469 (App. Div. 1994) (noting
that a parent can demonstrate elimination of harm from their substance abuse by
engaging in drug counseling, remaining drug free, and engaging in other related
services). Aside from her progress in substance abuse treatment, the record also
shows she obtained housing. We nonetheless conclude the trial court did not
abuse its discretion in finding that she could not continually and consistently
provide a safe and stable home for the children, especially considering her
cohabitation with Mark. We decline to substitute our judgement for the trial
court's judgment with respect to the factors that placed the children at risk. We
add that the trial court acted well within its discretion in accepting the opinion
of the Division's expert that Lucy has yet to show that she consistently is able
to care for the children and meet their needs on a daily basis.
Nor are we persuaded by Lucy's contention that the children never felt
unsafe in her care. The record includes statements where the children described
A-3688-22 16 witnessing incidents that put their safety at risk, including domestic violence in
the home and Mark's physical abuse.
IV.
We turn next to Lucy's contention that the trial court erred in its
assessment of the third prong, N.J.S.A. 30:4C-15.1(a)(3), by failing to
adequately consider alternatives to termination. Luke relatedly argues that
Tonya's testimony revealed a misunderstanding of the differences between KLG
and adoption. He also argues that the court overstepped its role when it
attempted to remedy deficiencies in the record. We see no abuse of discretion
in the court's finding that there were no realistic alternatives to termination at
the time of the guardianship hearing considering the children's prolonged
placement with Tonya and her unwillingness to accept KLG.
We note that in 2021, the Legislature amended the KLG statute,
emphasizing the need to protect and preserve parental rights. See M.M. v. Dep't
of Child. & Fams., 479 N.J. Super. 471, 480 (App. Div.), cert. denied, 259 N.J.
301 (2024). Our Supreme Court has held that these amendments have limited
impact, however, on the termination of parental rights best interests test, altering
only N.J.S.A. 30:4C-15.1(a)(2)—its prior language permitted consideration of
harm from separating a child from his or her resource parent. D.C.A., 256 N.J.
A-3688-22 17 at 24-25 (citing A. 5598/S. 3814 (L. 2021, c. 154)). Consequently, the emphasis
on kinship care is not determinative when assessing whether the trial court
adequately considered alternatives to termination under N.J.S.A. 30:4C-
15.1(a)(3).
Here, the Division complied with the Legislature's intent when it placed
the children with a relative, Tonya, during all three removals. N.J.S.A. 9:6 -
8.30(a). But placement with a suitable relative need not automatically result in
KLG.
We are unpersuaded by Lucy's claim the trial court erred in accepting
Tonya's firm stance regarding KLG versus adoption. The law provides that
"[t]he decision of a resource parent to choose adoption over KLG must be an
informed one." N.J. Div. of Child Prot. & Permanency v. M.M., 459 N.J. Super.
246, 260 (App. Div. 2019). "The caregiver's consent to adopt should be not only
informed, but also unconditional, unambiguous, and unqualified." Id. at 264.
Tonya has remained steadfast in her position that she wishes only to adopt.
Tonya considered the differences between adoption and KLG on the record and
clearly stated why she preferred the former. Importantly, Lucy has not presented
a viable alternative to termination in view of Tonya's unwillingness to accept
A-3688-22 18 KLG. Furthermore, the court appropriately dismissed G.B., finding that he is
not a viable alternative for placement. 5
Finally, with respect to the third prong, Luke argues that the court
overstepped its authority during the guardianship trial when it interrupted
Tonya's testimony regarding the differences between KLG and adoption. We
are unpersuaded. N.J.R.E. 611(a) grants the court "reasonable control over the
mode and order of interrogating witnesses" and the presentation of evidence, to
prioritize determining the truth and to avoid wasting time. Furthermore,
N.J.R.E. 614(b) provides that the trial judge has the right to examine all
witnesses. As articulated in State v. Medina, 349 N.J. Super. 108, 130-31 (App.
Div. 2002), "[t]he intervention of a trial judge in the questioning of a witness is
both a power and duty, and forms part of the judiciary's general obligation to
ensure a fair trial."
The record shows the court interrupted Tonya twice—once to correct her
misunderstanding of whether Lucy would have control over matters such as
administering the children's medication under a KLG, and a second time to
correct the suggestion from Molly's Law Guardian that Lucy could make weekly
5 We note the record shows that none of the children wish to be placed with G.B.
A-3688-22 19 motions to vacate the KLG. Both issues were then explored by counsel. We are
satisfied that the court's interjection was a reasonable exercise of its authority
under N.J.R.E. 611(a) and 614(b) to ensure a fair hearing.
We turn next to Lucy's contention that the court erred in its assessment of
prong four, arguing that the experts did not adequately consider the deficiencies
in Tonya's caregiving. Luke also contends the court did not adequately assess
the fourth prong.
The fourth prong requires the State to demonstrate by clear and
convincing evidence that termination "will not do more harm than good."
N.J.S.A. 30:4C-15.1(a)(4). This prong "serves as a fail-safe against termination
even where the remaining standards have been met." G.L., 191 N.J. at 609.
"The question ultimately is not whether a biological mother or father is a worthy
parent, but whether a child's interest will best be served by completely
terminating the child's relationship with that parent." E.P., 196 N.J. at 108. "The
overriding consideration under this prong remains the child's need for
permanency and stability." N.J. Div. of Youth & Fam. Servs. v. L.J.D., 428 N.J.
Super. 451, 491-92 (App. Div. 2012). Evaluation of this prong includes
A-3688-22 20 considering the harm from severing the children's relationship with the resource
parent. D.C.A., 256 N.J. at 27.
In addressing Lucy's and Luke's arguments with respect to the fourth
prong, we reiterate that an appellate court's role is to determine whether the
Family Part's decision is supported by "substantial and credible evidence."
M.M., 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172,
188 (App. Div. 1993)). As we have noted, we will not disturb the Family Part's
findings "unless they are so 'wide of the mark' that our intervention is necessary
to correct an injustice." F.M., 211 N.J. at 448 (quoting E.P., 196 N.J. at 104).
Stated another way, "[i]t is not our place to second-guess or substitute our
judgment for that of the family court, provided that the record contains
substantial and credible evidence to support the decision to terminate parental
rights." Id. at 448-49 (citing E.P. 196 N.J. at 104).
Here, the trial court's findings were supported by the opinions expressed
by the two experts who testified. David Brandwein, Psy.D., concluded that,
while the children had a bond with Lucy, it was not a secure bond because Lucy
was incapable of fulfilling parental functions through their adulthood. Dr.
Brandwein tied this to the children's need for stability and Lucy's inability to
prioritize the children's need for a safe and secure environment long -term.
A-3688-22 21 Notwithstanding Lucy's improvements in certain areas, Dr. Brandwein opined
that reunification likely would result in the children's future removal, an
outcome he said would be a "psychological blow . . . from which they are
unlikely to recover." Elizabeth Stillwell, Psy.D., offered a similar opinion,
stressing that any change in the children's placement would be "extraordinarily
impactful" and exacerbate the children's existing emotional and cognitive issues.
We add the record amply demonstrates that the children have experienced
ongoing issues due to their time in Lucy's care and the multiple removals. All
three children were diagnosed with adjustment disorder associated with trauma.
While Amy and Molly supported termination and adoption, Luke has
consistently maintained his desire to be reunified with his mother. However, he
was not strongly opposed to living with Tonya. He told the Division he liked
living with her, and his therapist said he felt secure with her notwithstanding
that he would prefer to reside with Lucy. Moreover, Luke conditioned
reunification with his mother on Mark not living with them. The court found
that evidence presented at trial demonstrates "reasonable suspicions" that Lucy
continues to live with and be involved with Mark.
Dr. Stillwell recognized that Luke would have the most difficulty with
termination given his preference to be reunified but still concluded that
A-3688-22 22 termination was in his best interests. Dr. Brandwein likewise opined that the
children likely would experience a "short-term grief reaction" from termination
but maintained that they would suffer the greatest harm from reunification.
VI.
Finally, we address Lucy's contention, raised for the first time on appeal,
that the different permanency plans for the three older children and Max will
foreclose sibling visits. 6 The question of sibling visitation was not expressly
part of the remand. Accordingly, there is a limited record. Dr. Stillwell opined
that because Max was in a family placement, the other children will continue to
see him, and as we have noted, the court briefly commented on Tonya's
willingness to facilitate visitation. However, so far as we can determine, the
court made no explicit findings of fact based on evidence in the record on
whether and in what circumstances Tonya would agree to sibling visitation.
Because this issue is raised for the first time on appeal, the plain error
standard of Rule 2:10-2 applies. Under this standard, a reviewing court assesses
whether the unchallenged error was "clearly capable of producing an unjust
result." State v. McGuigan, 478 N.J. Super. 284, 300 (App. Div. 2024) (quoting
State v. Clark, 251 N.J. 266, 287 (20022)). Cf. State v. Walker, 385 N.J. Super.
6 Luke does not address this argument in his brief. A-3688-22 23 388, 410 (App. Div. 2006) (noting that reviewing courts frequently decline to
consider issues not raised below or properly presented on appeal).
When addressing the fourth prong of the best interests test, courts may
consider the disruption that termination would cause to sibling relationships.
See In re Guardianship of J.N.H., 172 N.J. 440, 477-78 (2002) (court should
have reconsidered fourth prong because foster family "imposed, as a condition
of adoption, a complete severance of any connection between [the child] and his
now intact birth family"). See also In re Guardianship of Jordan, 336 N.J. Super.
270, 275-76 (App. Div. 2001) (in addressing the fourth prong, the Family Part
considered impact on sibling relationship, where father's parental rights were
terminated to one child but not the other, and it was unclear how the sibling
relationship would continue). Cf. N.J. Div. of Youth & Fam. Servs. v. F.H., 389
N.J. Super. 576, 626-27 (2007) (affirming termination despite the uncertainty of
whether the siblings, who were in different placements, would have post -
adoption contact).
We note that siblings have a right to visitation under the Grandparent and
Sibling Visitation Statute, N.J.S.A. 9:2-7.1. Thus, if the family is unable to
arrange visits, the children may petition for visits under this statute. In these
circumstances, we conclude Lucy's newly raised contention does not change the
A-3688-22 24 fact that there is ample support for the trial court's overall finding under the
fourth prong. If, as Lucy's argument assumes, Tonya proves to be unwilling to
allow sibling visitation, there remains a statutory path to authorize post-adoption
In sum, we are satisfied that the trial court did not abuse its discretion in
accounting for the best interests of the children and their need for permanency
and stability. To the extent we have not specifically addressed them, any
remaining arguments raised by Lucy and Luke lack sufficient merit to warrant
discussion. R. 2:11-3(e)(2)(E).
Affirmed.
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