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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2659-23
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
T.N.G. and P.H.,
Defendants,
and
D.C.,
Defendant-Appellant. _________________________
IN THE MATTER OF THE GUARDIANSHIP OF L.P.G., L.D.G., and J.A.H., minors. __________________________
Submitted May 12, 2025 – Decided July 21, 2025
Before Judges Berdote Byrne and Jacobs. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0028-22.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Lora B. Glick, Designated Counsel, on the brief).
Matthew J. Platkin, Attorney General, attorney for respondent (Sookie Bae-Park, Assistant Attorney General, of counsel; Lakshmi R. Barot, Deputy Attorney General, on the brief).
Jennifer N. Sellitti, Public Defender, Law Guardian, attorney for minors L.P.G. and L.D.G. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendant D.C.1 ("Darrell") appeals from the April 15, 2024 order
terminating parental rights to his twin sons, L.P.G. and L.D.G. ("Larry" and
"Lonnie"), born in May 2020. For the reasons that follow, we affirm.
I.
In May 2020, T.N.G. ("Talia") gave birth to twins, both of whom were
underweight and tested positive for cocaine at delivery. Talia had a prior history
with the New Jersey Division of Child Protection and Permanency ("DCPP" or
1 We use initials and fictitious names to identify the parties to protect and preserve their confidentiality. R. 1:38-3(d)(12). A-2659-23 2 "Division"), having lost parental rights to three older children due to substance
abuse and related challenges. Following their discharge from the hospital, the
twins were placed in the care of C.H. ("Carol"), a resource parent who had
previously adopted their two older half-sisters and would later serve as resource
parent for their younger half-sibling, J.H. ("Jesse"). The Division explored
alternative kinship placements for the twins, including extended family and
friends of Talia and Darrell, but these options were ultimately declined.
Throughout the Division's involvement and litigation, the twins remained
in the resource family's home, where they lived with biological half-siblings.
The twins' special medical needs were addressed by the resource parents.
The Division commenced litigation by filing an order to show cause and
guardianship complaint on August 4, 2021, seeking to terminate the parent al
rights of Darrell and Talia. Initially, neither parent had been served with
process, and their whereabouts were unknown to the Division. Multiple case
management hearings occurred as the Division attempted to locate, serve, and
engage both parents in services, including paternity testing for Darrell.
Darrell was personally served with the guardianship complaint while
incarcerated in March 2022. The Division then filed an amended guardianship
A-2659-23 3 complaint in September 2022, consolidating proceedings to include Jesse and
his father, P.H. ("Paul"), under the same docket number.
After confirming Darrell's paternity in June 2022, the Division facilitated
monthly visits between Darrell and the twins, beginning in October 2022 at
Bayside State Prison. Visits initially occurred in a no-contact format due to
COVID-19 restrictions. Upon his release from incarceration in March 2023,
Darrell resided at a halfway house, engaged in substance abuse treatment , and
participated in weekly visits with the twins at Division offices through June 14,
2023, when he was released to a shelter. Afterward, Darrell's engagement with
Division services and visitation became inconsistent, ultimately ceasing
altogether. The Division continued outreach, but Darrell did not reestablish
contact sufficient to resume visitation or further evaluations.
The Trial
The Division proceeded with a guardianship trial in March 2024,
presenting testimony from its expert, Dr. Elizabeth Stilwell, an adoption worker,
and the twins' resource parent, Carol. Darrell was noticed of the trial and
appeared on one day of trial but did not testify or call any witnesses. The Law
Guardian for the children participated and supported termination of parental
rights.
A-2659-23 4 On April 15, 2024, the trial court issued an oral and written decision,
terminating the parental rights of Darrell and Talia to the twins and the parental
rights of Paul and Talia to Jesse. The court found the Division had met all four
prongs of the statutory "best interests" standard by clear and convincing
evidence pursuant to N.J.S.A. 30:4C-15.1(a).
Although recognizing Darrell's efforts and participation, the court found
he did not provide a stable plan for the twins due to ongoing homelessness and
failure to consistently engage in Division services. The court emphasized the
lack of a bond between Darrell and the twins.
The court found Dr. Stilwell's testimony credible "based on her detailed
recounting of the evaluations and case history . . . [with] her opinions . . .
constantly drawn from her observations and training."
Dr. Stilwell performed a psychological assessment of Darrell in December
2022, while Darrell was incarcerated. She initially recommended Darrell remain
a caregiving option for the twins but only if he participated in a substance abuse
evaluation, parenting skills training, and consistent visitation. Dr. Stilwell
confirmed that after he transitioned from a halfway house to a shelter, Darrell
missed multiple scheduled evaluations, did not exercise visitation, and did not
engage in any DCPP services, despite regular attempts. Ultimately, she
A-2659-23 5 concluded that "[Darrell] is unlikely to become capable of independent[ly]
parenting . . . his children in the foreseeable future and that the children's
interests would be best served by terminating parental rights."
The court recounted that the resource parent, Carol, testified to having
discussions with the Division regarding kinship legal guardianship versus
adoption and demonstrated a clear understanding, committing herself to
adoption.
The Four Prongs
In making its findings, the court assessed whether the Division had met
its burden to prove by clear and convincing evidence the four statutory factors,
or prongs, to terminate parental rights:
(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 [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and (4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
A-2659-23 6 In making its findings, the court acknowledged the "four prongs are not
discreet and separate but are related, no [sic] overlap with one another [and]
provide a comprehensive standard of the child's best interest."
Regarding the first prong, the court found Darrell's absence from the
children's life to be a harm for which there is no true remedy. Elaborating, the
court said:
[Darrell] has never provided a concrete plan to safely care for [Larry and Lonnie] and has yet to substantially engage in services. More importantly . . . [Darrell, Talia, and Paul] have failed to be stable figures in the children's lives for several years. None of the parents have visited the children in roughly two years.
The court continued:
The parents have each failed to comply with services that would allow them to safely parent, such as parenting skills, substance abuse treatment, evaluations, therapy, or visitation. Throughout the litigation, the parents have been made aware of the various requirements and have yet to fully present a concrete plan as to how they could safely parent. It is clear that the parents have harmed their children and cannot parent now or in the foreseeable future.
As to the second prong, the court found "the parents have consistently
delayed participation in services and failed to complete services. Their delays
deprive[d] the minor children of permanency that they deserved."
The court assessed the two-part criteria of prong three: whether the
A-2659-23 7 Division has made reasonable efforts to provide services to help the parents
correct the circumstances which led to the children's placement outside the
home, and whether the court has considered alternatives to termination. As
noted, the court found the twins' parents did not avail themselves of a variety of
offered services tailored to their needs. Rather than engage, the court found the
"parents repeatedly delayed their participation and made excuses as to why they
could not fully participate in services or visitation" and that "the parents were
mostly uncommunicative."
The fourth prong required the court to determine whether terminating
parental rights would cause more harm than good. Where the child's bond with
the biological parent is so substantial that termination would cause greater harm
than good, the fourth prong is not satisfied. This prong requires a determination
as to whether the resource parents can serve as a stable alternative and
ameliorate any adverse effects of the termination. The court recognized:
The three minors have lingered in the foster care system since birth while the defendants have failed to adequately address the issues preventing them from safely parenting. Each parent has had inconsistent contact with the children and failed to put forth an adequate parenting plan. Additionally, the parents have failed to complete recommended programs and comply with services based on the testimony of Dr. Stilwell and [the caseworker] along with the totality of evidence, it is unlikely that the parents will be able to provide
A-2659-23 8 stability and permanency in the foreseeable future. Neither [Darrell] nor [Paul] appeared for any evaluations which would have determined their ability to parent or the nature of their relationships with their children. . . . With regard to [Darrell,] Dr. Stilwell testified that quote, "The children had not come to see him as a parental figure and they had not formed a secure attachment with him; terminating his relationship with them would likely not be disruptive to the children," end of quote, and recommended the termination of parental rights to allow the children to be adopted. Further, all three children have been placed in the same home with their other half siblings not subject to this litigation since birth. . . . Therefore, []termination of [the natural parents'] parental rights will not do more harm than good. Therefore, the . . . fourth prong has been satisfied.
Neither Talia nor Paul appealed the termination of their parental rights.
Darrell filed a timely notice of appeal.
II.
Our review of a trial court's decision to terminate parental rights is limited.
N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 552 (2014). We will
uphold the court's factual findings if they are "supported by adequate,
substantial, and credible evidence." Ibid. "Concomitantly, reviewing courts
should defer to the trial court's credibility determinations." Ibid. We do so
because the court "has the opportunity to make first-hand credibility judgments
about the witnesses who appear on the stand; it has a 'feel of the case' that can
A-2659-23 9 never be realized by a review of the cold record." N.J. Div. of Youth & Fam.
Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Fam.
Servs. v. M.M., 189 N.J. 261, 293 (2007)). Our Supreme Court has reiterated
"a trial court's factual findings [in a guardianship action] 'should not be disturbed
unless they are so wholly unsupportable as to result in a denial of justice.'" N.J.
Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re
Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). However, we review the
trial court's legal interpretations de novo. R.G., 217 N.J. at 552-53.
The State is required to meet four statutory factors in its application to
terminate parental rights, referenced here by the trial court in its findings of fact
and conclusions of law. N.J.S.A. 30:4C-15.1(a). As this court acknowledged,
these four factors are not "discrete and separate," but rather overlap to provide
a comprehensive picture of what may be necessary to provide for the best
interests of the child. M.M., 189 N.J. at 280. Thus, evidence pertaining to one
prong may also be used to form the basis to establish another prong. N.J. Div.
of Child Prot. & Permanency v. T.D., 454 N.J. Super. 353, 379-80 (App. Div.
2018). However, the "'best interests of a child' can never mean the better
interests of the child." N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591,
603 (1986). "It is . . . incumbent upon the [Division] . . . to show more than that
A-2659-23 10 it will provide a better home for the child. It must demonstrate affirmatively
that the child's 'best interests' will be substantially prejudiced if he is permitted
to remain with his parent[.]" Ibid. (quoting In re Guardianship of Cope, 106
N.J. Super. 336, 340-41).
The Division must prove each of the four factors by clear and convincing
evidence. N.J. Div. of Youth & Fam. Servs. v. I.S., 202 N.J. 145, 168 (2010).
"[T]he evidence must be 'so clear, direct and weighty and convincing as to
enable' the factfinder 'to come to a clear conviction, without hesitancy, of the
trust of the precise facts in issue.'" N.J. Div. of Youth & Fam. Servs. v. H.P.,
424 N.J. Super. 210, 225 (App. Div. 2011) (quoting In re Seaman, 133 N.J. 67,
74 (1993)).
Defendant posits the trial court misapplied the law and that its findings of
fact were not supported by credible evidence in the record. We note at the outset
that the twins were not removed from Darrell, but rather from their biological
mother, Talia, who is not a party to this appeal. Nonetheless, application of the
four-prong standard is appropriate.
On prong one, "the relevant inquiry focuses on the cumulative effect, over
time, of harms arising from the home life provided by the parent," M.M., 189
N.J. at 289, or of a "parent's inability to provide care [that] is harmful and can
A-2659-23 11 endanger the health of the child." T.D., 454 N.J. Super. at 380-81. Harm to a
child may result from a parent's incapacity or failure to take responsibility for
the child. See N.J. Div. of Youth & Fam. Servs. v. H.R., 431 N.J. Super. 212,
222 (App. Div. 2013) (finding that a parent's failure to provide a stable home
for a child and their criminal arrests and incarcerations created a serious risk of
emotional long-term harm). However, our Supreme Court has concluded that
"incarceration alone – without particularized evidence of how a parent's
incarceration affects each prong of the best-interests-of-the-child standard – is
an insufficient basis for terminating parental rights." R.G., 217 N.J. at 555. If
termination is sought based on the incarceration of a parent, consideration
should be given to the parent's attempts to communicate and have a relationship
with the child during his incarceration and the level of concern displayed by the
parent as to the child's well-being. Ibid.
In cases involving substance abuse, as here, a parent's willingness to
accept and respond to treatment is informative. N.J. Div. of Youth & Fam. Servs.
v. L.J.D., 428 N.J. Super. 451, 481-82 (App. Div. 2012). "When 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, [prong one] of the statute has
A-2659-23 12 been proven." H.R., 431 N.J. Super. at 223. In sum, to satisfy the first prong,
there must be evidence that the incapacity resulted in actual harm or
endangerment to the child. In re Guardianship of K.H.O., 161 N.J. 337, 349
(1999).
The second aspect of the analysis evaluates a parent's ability and
willingness to eliminate the harm, N.J.S.A. 30:4C-15.1(a)(2) and whether a
parent's inability of unwillingness to provide a safe and stable home for the child
resulting in a delay of permanent placement will add to the harm. Ibid.
On prong one, the court acknowledged there had been no findings of abuse
or neglect made against the parent. Consistent with case law, the court did not
rest its findings solely on Darrell's incarceration. Rather, it focused on Darrell's
unwillingness to engage in services offered by the Division after his release.
The court found his extended absence and failure to engage in services and
inability or unwillingness to make a plan for the children harmed the children
by depriving them of a safe and stable environment. Those findings are
supported by substantial evidence in the record.
On prong two, the court found it was "reasonably foreseeable" that Darrell
would continue to "inflict harm" on the twins because during the years he has
"consistently delayed participation in services and failed to complete services."
A-2659-23 13 That delay harmed the twins by delaying their permanency while they remained
in placement "for the entirety of their lives, leaving them with an uncertain
future" and depriving them of permanency "necessary for proper child
development." In making those findings, the court relied on Dr. Stilwell's
testimony that Darrell had "parenting deficiencies, which precluded him from
being able to independently care for his children, and given the circumstance
and his history, that he was unlikely to become a viable parenting option in the
foreseeable future." In considering this prong, the trial court also considered
our Supreme Court's guidance in R.G., that "[i]ncarceration is . . . probative of
whether the parent is incapable of properly caring for . . . or has abandoned the
child." 217 N.J. at 554-55.
While a parent's continued failure to provide a stable home for the child
may serve as a basis for establishing the second prong, N.J.S.A. 30:4C-
15.1(a)(2), that prong may not be established until the Division has proved that
it has met its obligation to make reasonable efforts to provide services to help
the parent eliminate the issue that led to the child's placement in the first
instance. N.J.S.A. 30:4C-15.1(a)(3); see T.D., 454 N.J. Super. at 380-83. From
our review of the record, we are satisfied that the Division met its obligation to
make reasonable efforts to provide services to assist Darrell, which he did not
A-2659-23 14 accept. See N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 452 (App.
Div. 2012) ("The diligence of [the Division's] efforts on behalf of the parent is
not measured by whether those efforts were successful.") (internal quotation
marks omitted).
The third prong also requires the court to consider alternatives to
termination. K.H.O., 161 N.J. at 354. "Reasonable efforts" is defined in
N.J.S.A. 30:4C-15.1(c) as "attempts by an agency . . . to assist the parents in
remedying the circumstances and conditions that led to the placement of the
child and in reinforcing the family structure[.]" This includes, but is not limited
to:
(1) consultation and cooperation with the parent in developing a plan for appropriate services; (2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification; (3) informing the parent at appropriate intervals of the child's progress, development, and health; and (4) facilitating appropriate visitation.
With respect to incarcerated persons, the Division is not relieved of its
obligation to provide services merely because a parent is incarcerated. R.G.,
217 N.J. at 562-63. Our Supreme Court has acknowledged that although
"providing services to incarcerated persons is difficult and may be futile, . . . the
Division should not avoid providing services to all incarcerated persons,
A-2659-23 15 regardless of their seeming unwillingness to improve their parental fitness."
Ibid. In R.G., the court expressed that "particularly when an incarcerated
parent's release is imminent, [and] the other parent has relinquished her rights
to their child, and the incarcerated parent has expressed a willingness to improve
his parenting skills and a desire to deepen his parent-child relationship, the
Division must do more[.]" Id. at 563.
Regarding the second aspect of prong three, our jurisprudence recognizes
two permanency options; KLG and adoption. P.P., 180 N.J. at 507-08 (citing
N.J.S.A. 3B:12A-1). KLG is considered an alternative to termination of parental
rights that offers permanency and stability to a child residing with a relative or
kinship caregiver. See N.J. Div. of Youth & Fam. Servs. v. L.L., 201 N.J. 210,
222-25 (2010) (discussing the KLG Act and its intent). Unlike termination of
parental rights, KLG does not cut off the legal relationship between parent and
child. N.J. Div. of Youth & Fam. Servs. v. S.V., 362 N.J. Super. 76, 87 (App.
Div. 2003). The parent remains entitled to visitation and has the right to seek
termination of guardianship and resumption of custody at a later date if he or
she is able to provide a safe and secure home for the child. Ibid.
For cases involving alternatives to termination, the feasibility of
appointing a KLG are considered under prong three. R.G., 217 N.J. at 558. The
A-2659-23 16 State has an obligation to support the child's relationship with a parent, including
by considering alternatives to the termination and providing services that
mitigate potential harm to the child. In re Guardianship K.L.F., 129 N.J. 32, 43
(1992). A child's attachment to third parties "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). "Once [the
caregiver] is provided with [the benefits and burdens of a KLG], the caretaker's
preference between the two alternatives should matter." M.M., 459 N.J. Super.
at 263. However, while the resource parent or caregiver's preference is relevant,
it is not dispositive. Id. at 264.
Concerning the first part of prong three, the trial court properly concluded
the Division undertook reasonable efforts to reunify Darrell with the twins. It
found that the services, which included parenting skills, individual therapy,
psychological assessments, family team meetings, transportation assistance,
substance abuse evaluation, and visitation were specially tailored to Darrell's
needs as a recently-released incarcerated person. The court observed that
Darrell repeatedly delayed participation, made excuses for not fully
participating, and was uncommunicative with the Division.
A-2659-23 17 Concerning the second part of the third prong, the trial court found there
were no alternatives to termination of parental rights. The Division's efforts to
find a safe placement with relatives were not successful and none of the ruled-
out relatives appealed. And as recited, Carol's testimony reflected "a clear
understanding of the differences between KLG and adoption." Under the
circumstances, her wish to keep the five siblings together in an adoptive
household was reasonable and properly informed the court's decision-making
authority.
Expert Testimony and Net Opinion
Defendant also argues the trial court abused its discretion by accepting as
true the alleged net opinions of DCPP's expert, Dr. Stilwell, as those opinions
were speculative and unsupported by the evidence. In opposition to Dr.
Stilwell's findings, defendant contends the record clearly shows "Darrell's
loving and nurturing the twins and their forming a tender and trusting attachment
to him."
The net opinion rule bars admission “of an expert's conclusions that are
not supported by factual evidence or other data." Townsend v. Pierre, 221 N.J.
36, 53-54 (2015) (quoting Polzo v. Cnty. of Essex (Polzo I), 196 N.J. 569, 583
(2008)). Therefore, experts must "be able to identify the factual bases for their
A-2659-23 18 conclusions, explain their methodology, and demonstrate that both the factual
bases and the methodology are [scientifically] reliable." Id. at 55 (quoting
Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). "The net opinion rule is
a ‘corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of
an expert's conclusions that are not supported by factual evidence or other data.'"
Id. at 53-54 (alteration in original) (quoting Polzo I, 196 N.J. at 583). An expert
is required to "'give the why and wherefore' that supports the opinion, 'rather
than a mere conclusion.'" Townsend, 221 N.J. at 54 (quoting Borough of Saddle
River v. 66 E. Allendale, L.L.C., 216 N.J. 115, 144 (2013)). However, an
expert's failure "'to give weight to a factor thought important by an adverse party
does not reduce his testimony to an inadmissible net opinion if he otherwise
offers sufficient reasons which logically support his opinion.'" Ibid. (quoting
Rosenberg v. Tavorath, 352 N.J. Super. 385, 402 (App. Div. 2002)).
There is no question Dr. Stilwell's testimony was critical to the court's
decision. The court found it significant that Darrell had "inconsistent contact
with the children and failed to put forth an adequate parenting plan." The court
cited Dr. Stilwell's unrebutted expert opinion that the twins do not view Darrell
as a parental figure or have a secure attachment to him. Thus, in its assessment
of prong four, the court agreed with Dr. Stilwell that Larry and Lonnie would
A-2659-23 19 be harmed and likely "regress emotionally and behaviorally" if removed from
their resource family.
We disagree, however, with defendant's contention that Dr. Stilwell's
findings constituted a net opinion. As the Division observes in their brief, "[Dr.
Stilwell] requested updated visitation information so she could evaluate [the
twins'] attachment based upon the 'totality of the relationship' between Darrell
and the twins." The record of this case provided ample reliable evidence to
provide the bases for the doctor's opinions. The trial court did not abuse its
discretion by relying on those opinions and other credible evidence in reaching
its own conclusions that the children would not suffer more harm than good from
termination of parental rights.
To the extent we have not addressed any remaining arguments, they lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2659-23 20