Dcpp v. S.S. and P.F., in the Matter of the Guardianship of J.F.

• Court: New Jersey Superior Court Appellate Division
• Decided: July 5, 2024
• Docket: A-3488-22
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3488-22

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

S.S.,

Defendant,

and

P.F.,

Defendant-Appellant. ______________________________

IN THE MATTER OF THE GUARDIANSHIP OF J.F., a minor. ______________________________

Submitted April 23, 2024 – Decided July 5, 2024

Before Judges Sumners and Perez Friscia. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-0007-23.

Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Steven Edward Miklosey, Designated Counsel, on the brief).

Matthew J. Platkin, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorney General, of counsel; Lisa J. Rusciano, Deputy Attorney General, on the brief).

Jennifer Nicole Sellitti, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Following a five-day Title 30 guardianship trial, Judge Mary Ann O'Brien

terminated the parental rights of S.S. (Sarah)1 and P.F. (Phil) to their then two-

year-old, son J.F. (Jordan). The termination arose from the neglect and abuse

Phil and Sarah inflicted on Jordan's older maternal half-brother, C.M. (Chris).

Phil appeals, only challenging the judge's findings as to prongs two and four of

the best interest test governing the termination of parental rights and

1 We use pseudonyms or initials to protect the confidentiality of the participants in these proceedings. R. 1:38-3(d).

A-3488-22 2 permanency under N.J.S.A. 30:4C-15.1(a).2 The Division of Child Protection

and Permanency (Division) and Law Guardian urge us to uphold the decision.

Because the judge's order is consistent with the law, we affirm.

I

In late August 2021, the Division received a referral through the Screening

and Crisis Intervention Program (SCIP) from Legacy Treatment Services

regarding alleged mistreatment of Chris. A nurse reported that during a virtual

visit, the eight-year-old Chris had "extreme bruising on his face," appeared

"malnourished," had "withdrawn" cheeks, and "his forehead looked like it was

protruding." The nurse noted Chris' conflicting statements regarding how his

injuries were sustained. He said that his "mommy and daddy beat [him]," but

also that "he had done th[o]se things to himself, and that he hates his parent [s]

and wants them to get in trouble." Sarah and Phil, who is not Chris' biological

father but had been living with Sarah and Chris since February 2020, were

present during the virtual visit.3 They showed the nurse videos of Chris' room,

claiming "he used his 'face'" to make "huge holes" in his wall. They also told

the nurse they fed Chris, but that "he 'throws it up' . . . 'hides the food in the

2 Sarah has not challenged the judge's ruling and is not a party to this appeal. 3 Chris' biological father died in 2019. A-3488-22 3 walls' and does not eat it." Notwithstanding the conflicting allegations how

Chris' body was "traumatized," he was "sent to the hospital . . . due to

malnourishment and extreme bruising on his face."

When EMTs arrived at the home, Chris was found crouched in the closet

of his dark, unfurnished room with huge purple rings around his eyes, thinning

hair, a sunken face, and a protruding forehead. Whereas Jordan was found free

of injuries and of average health for his age. Within hours of the referral, the

Division removed Jordan and Chris from the home. Three months later, in

November 2021, Phil was arrested and charged with second degree endangering

the welfare of a child, N.J.S.A. 2C:24-4, and fourth-degree neglect, N.J.S.A.

9:6-3.

The Division filed a complaint for custody of Jordan and care and

supervision of Chris based on allegations that Sarah and Phil abused and

neglected the boys.4 On August 31, 2021, the Division was granted the relief it

sought.

On October 14, 2022, after a fact-finding hearing, Judge O'Brien

determined Sarah and Phil subjected Chris to abuse and neglect and, as a result,

4 Sarah surrendered her parental rights to Chris to his resource parents on May 5, 2023. A-3488-22 4 placed Jordan at imminent risk of harm. The judge also approved the Division's

permanency plan of termination of Phil and Sarah's parental rights, followed by

his current resource parents' adoption.

Jordan was placed with his current resource parents on November 28,

2022. He remained there until the guardianship trial concluded, awaiting his

adoption.

During the guardianship trial, conducted throughout May and June 2023,

the Division presented the testimony of six witnesses: two Division staff

members, a Pemberton Township Police detective, a Burlington County

Prosecutor's Office detective, Maria McColgan, M.D. –– an expert child abuse

pediatrician, and Brian Eig, Psy.D. –– an expert clinical and forensic

psychologist. The Law Guardian presented the testimony of James Loving,

Psy.D., an expert clinical and forensic psychologist. Neither Sarah nor Phil

testified. Phil presented the testimony of his mother.

Following the trial, Judge O'Brien reserved decision. On June 28, 2023,

the judge rendered a bench decision covering 151 transcript pages, terminating

Sarah's and Phil's parental rights to Jordan. The judge awarded guardianship of

Jordan to the Division, allowing them to consent to his adoption.

A-3488-22 5 II

In reviewing a family court's decision to terminate parental rights, we give

"deference to the . . . court[s'] fact[-]finding" because of "the family courts'

special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J.

394, 413 (1998). The judge's findings of fact are not disturbed unless they are

"so manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice." Id. at 412

(quoting Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)).

"[T]he conclusions that logically flow from those findings of fact are, likewise,

entitled to deferential consideration upon appellate review." N.J. Div. of Youth

& Fam. Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006).

Judge O'Brien carefully reviewed the evidence presented, concluding the

Division met, by clear and convincing evidence, all the legal requirements to

sustain a judgment of guardianship. Her oral decision tracks the four prongs of

the best interests of the child test, N.J.S.A. 30:4C-15.1(a); accords with our high

court's prior holdings in In re Guardianship of K.H.O., 161 N.J. 337 (1999), In

re Guardianship of D.M.H., 161 N.J. 365 (1999), and N.J. Div. of Youth & Fam.

Servs. v. F.M., 211 N.J. 420 (2012); and is supported by substantial and credible

evidence in the record. We, therefore, affirm substantially on the grounds

A-3488-22 6 expressed in the judge's thorough and well-reasoned decision. We highlight the

judge's analysis of prongs two and four, the only rulings Phil challenges.

A. Prong Two

Under prong two, the Division must prove "[t]he parent is unwilling or

unable to eliminate the harm facing the child[ren] or is unable or unwilling to

provide a safe and stable home . . . and the delay of permanent placement will

add to the harm." N.J.S.A. 30:4C-15.1(a)(2).5

"The second prong of the statutory standard relates to parental unfitness."

K.H.O., 161 N.J. 337 at 352. The prong requires a judge to consider whether it

is reasonably foreseeable that a parent could "cease to inflict harm upon" a child

entrusted to them. N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 607

(1986). In satisfying the prong's evidentiary burden, the Division may

demonstrate how a parent is unable to: (1) "provide 'a safe and stable home for

the child' and a 'delay in permanent placement' will further the harm to the

child," K.H.O., 161 N.J. 337 at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)); or (2)

5 On July 2, 2021, the Legislature enacted L. 2021 c. 154, § 9 amending N.J.S.A. 30:4C-15.1(a) pertaining to the standards for terminating parental rights. Specifically, the Legislature amended N.J.S.A. 30:4C-15.1(a)(2), to exclude the second sentence of (a)(2), which read: "Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child."

A-3488-22 7 cure the initial cause of harm and will continue to cause serious and lasting harm

for the child, In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The judge may

consider a parent's: (1) past behavior because past harm can be predictive of

future abuse or neglect of another child, see J. v. M., 157 N.J. Super. 478, 493

(App. Div. 1978), and a child's mere "exposure to a parent's physical abuse of a

child may well be abusive to" other children, see N.J. Div. of Youth & Fam.

Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div. 2002); and (2) "delay in

[securing] permanent placement" for the child because a delay is a harm in itself,

K.H.O., 161 N.J. at 352-54.

Phil argues there was no credible evidence that he harmed Chris. He

specifically argues the judge erroneously "place[d] great importance upon Chris'

accusations of abuse and Dr. McColgan's conclusion that many of Chris' injuries

were not consistent with self-harm." Because of the pending crimnal charges

against him, he claims "it made little sense to make any significant changes in

[his and Sarah's] residency or seek permanent employment until their own

futures became clear." He emphasizes, any

allegations of harm to Jordan were never raised as a concern by [the Division] or medical professionals[;] that [he and Sarah] consistently participated in visitation[s] with Jordan throughout their case[] [and] that they were compliant in managing and eliminating their prior substance abuse[;] and that they had valid

A-3488-22 8 concerns for not completing psychological evaluations earlier in litigation.

Moreover, he maintains there is no proof that he could not be trusted with caring

for Jordan.

The judge properly determined the Division established that Phil abused

Chris, which negatively impacted his ability and willingness to maintain and

foster "an environment leading to normal child development" for Jordan. Robert

M., 347 N.J. Super. at 68. In Robert M., this court reversed the trial court's

finding that the defendants' four older biological sons were not abused because

"[a]lthough the absence of past physical abuse to the [defendants'] natural

children may [have] infer[ed] their future safety, the alleged treatment of [their

adopted child] could be a dangerous harbinger to one or more of the other[]"

adoptive or biological children. Ibid. One of the defendants' three adopted sons,

who died, was subjected to more frequent and severe discipline than his other

siblings—daily cold showers, forced to sleep in an unheated garage with duct

tape over his mouth, locked in a cinder block room, and overly-medicated. Id.

at 54-55. The other six siblings often witnessed the defendants' treatment of the

abused child. Id. at 56.

The record discloses Sarah allowed and fostered a parent-like relationship

between Chris and Phil; Phil lived with Chris for a little over a year and made

A-3488-22 9 many disciplinary and health-related decisions concerning Chris, who called

Phil "daddy." The judge properly considered the effect on Jordan of Phil's

maltreatment of Chris—locking Chris is a dark and unfurnished room with little

to no food, subjecting Chris to constant near-death abuse and neglect.

Furthermore, Drs. Eig and Loving both testified that Phil's prognosis for

change was extremely poor, considering his refusal to take any genuine

responsibility for parenting flaws, opining that even if his pending criminal

charges were not preventing his full compliance with services, they could not

expect any long-term changes in his behavior. The unlikelihood of Phil showing

any long-term change was further exemplified by his psychological stressors

and environmental circumstances — to which Dr. Eig testified had not changed

or improved since Jordan's removal up to the time of trial — lack of employment

and only source of income being welfare, living in a motel with no effort to

attain a more permanent living arrangement, and pending criminal charges for

abusing Chris.

Accordingly, there was clear and convincing evidence to support the

judge's finding the Division proved prong two that Phil's continued parental

relationship with Jordan would be harmed given his abuse of Chris.

A-3488-22 10 B. Prong Four

Under prong four, the Division must demonstrate by clear and convincing

evidence that "[t]ermination of parental rights will not do more harm than good."

N.J.S.A. 30:4C-15.1(a)(4). The prong characterizes a child's need for

permanency as "an important consideration." N.J. Div. of Youth & Family

Servs. v. M.M., 189 N.J. 261, 281 (2007). "The question to be addressed under

[the] prong is whether, after considering and balancing the two relationships,

the child will suffer a greater harm from the termination of ties with [their]

natural parents than from the permanent disruption of [their] relationship with

[their] foster parents." K.H.O., 161 N.J. at 355. The "prong serves as a fail-safe

against termination even where the remaining standards have been met," and

"does not provide an independent basis for termination where the other standards

have not been satisfied." N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J.

596, 609 (2007).

To weigh any potential harm from terminating parental rights against a

child's separation from his or her foster parents, a court must consider expert

testimony on "the strength of each relationship." J.C., 129 N.J. at 25. "[W]here

it is shown that the bond with foster parents is strong and, in comparison, the

A-3488-22 11 bond with the natural parent is not as strong, that evidence will satisfy the

requirement of N.J.S.A. 30:4C-15.1(a)(4)." K.H.O., 161 N.J. at 363.

Phil contends that Drs. Eig and Loving both determined there was a secure

and strong attachment between him and Jordan. He stressed that Dr. Eig

reported that "Jordan would be at high risk of severe and enduring psychological

or emotional harm if his relationship with [Phil] was permanently ended ." On

the other hand, according to Phil, Dr. Loving "was more conservative and

somewhat vague in his assessment of the risk that faced Jordan,

acknow[l]edging that Jordan would suffer short-term problems adjusting to the

sudden loss of contact with his parents." Phil contends the fact that Jordan "was

acting out and presenting behavioral problems" during the months the resource

parents' cared for him preceding the trial's end, conflicts with the judge's finding

"that the resource [parents] could mitigate the harm of a sudden loss of both of

Jordan's parents, to whom he was securely attached." Finally, he emphasizes he

"had little choice but to defer psychological evaluations while [his] criminal

proceedings progressed."

Phil's contentions fail to overcome the cogent reasons explained by Judge

O'Brien in finding the Division satisfied its prong four burden. Relying upon

the unrebutted conclusions of Drs. Eig and Loving, the judge considered the

A-3488-22 12 psychological effect termination versus reunification would have on Jordan,

ultimately adopting their opinions that reunification would do greater harm to

Jordan than termination of his natural parent's rights. Essentially, the judge

concluded as the court did in K.H.O., that Phil "is [neither currently] capable of

being a parent, [as he] has provided no reliable indication, despite some apparent

[compliance with some—not all—of his court ordered services], [nor] that []he

[would] ever be in the foreseeable future." 161 N.J. 356-57.

The record shows that while Jordan did have an adjustment period

transitioning to the resource parents, he made significant progress under their

care. The Division did not act prematurely in seeking termination of Phil's

parental rights because his criminal charges were still pending. Considering

Jordan's pressing need for a stable family life with a capable parent or parents,

the judge correctly found the record demonstrated that reunification was not a

viable option because Phil could not be a responsible parent within any

foreseeable reasonable time and that the resource parents would be able to

mitigate any harm caused by his removal from Phil's life.

Accordingly, there was clear and convincing evidence to support the

judge's finding the Division proved prong four that terminating Phil's parental

rights with Jordan would not do more harm than good.

A-3488-22 13 Affirmed.

A-3488-22 14