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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1085-20
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
C.B.,1
Defendant-Appellant. ________________________
IN THE MATTER OF THE GUARDIANSHIP OF I.B. and G.B., minors. ________________________
Submitted September 22, 2021 – Decided October 25, 2021
Before Judges Fuentes, Gooden Brown and Gummer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FG-05-0021-19.
1 We refer to the parties and the children involved in this case using either initials or pseudonyms to protect their privacy and the confidentiality of these proceedings. R. 1:38-3(d)(12). Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the briefs).
Andrew J. Bruck, Acting Attorney General, attorney for respondent (Sookie Bae-Park, Assistant Attorney General, of counsel; Nicholas Dolinsky, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel C. Devlin, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM
Defendant C.B. is the biological father of twin six-year-old girls, G.B.
(Gina) and I.B. (Ivy). Defendant appeals from the final judgment of the Family
Part terminating his parental rights to his two daughters. After reviewing the
record developed at the guardianship trial and mindful of our standard of review,
we affirm.
I
On April 11, 2018, the Division of Child Protection and Permanency (the
Division) received a referral from the Cape May County Prosecutor’s Office that
Gina's and Ivy's mother D.R. (Dina) had been seriously wounded from a gunshot
to her head and was hospitalized at Atlantic County Medical Center. Dina's
friend found her prostrated on her bed unresponsive, but breathing, and
A-1085-20 2 immediately called 911. Dina died later that day. That same day, the Division
learned defendant was hospitalized at Hahnemann University Hospital in
Philadelphia for a gunshot wound.
Defendant took the girls to their paternal grandmother A.B. (Andrea), who
resided in Philadelphia. Andrea denied law enforcement officers access to the
girls. On the evening of April 11, 2018, after confirming the children’s
permanent residence was in New Jersey, the Division executed a Dodd 2 removal
and placed the children with their maternal grandmother D.B. (Daphne) and
step-grandfather F.B. (Frank). On April 12, 2018, the Division filed a verified
complaint and an Order to Show Cause (OTSC) seeking custody of the children.
The Family Part granted the OTSC the following day and awarded custody of
the children to the Division.
The ensuing investigation revealed that on the day the police responded
to the 911 call reporting Dina's mortal head wound, the Philadelphia Police
Department confirmed defendant was hospitalized for a self-inflicted gunshot
wound to his head. This family tragedy can be traced to defendant's ostensible
2 "A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82." N.J. Div. of Youth & Fam. Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010). A-1085-20 3 suicide attempt, which resulted in Dina being shot in the head. Defendant
alleged he had been growing increasingly depressed after he had been passed
over for a job. According to defendant, he was "in a dark place . . . a very low
place in [his] life at that time."
Defendant's Account of His Wife's Death
On April 10, 2018, defendant slept with a loaded handgun under his pillow
because he was contemplating suicide. When he awoke the next morning, he
heard the voices of his two-year-old daughters in the next room. One of the girls
came into his room to say hello to him and "went into the bathroom with her
mother." Defendant rose from the bed and went to the kitchen to prepare the
girls' breakfast, which consisted of two unopened containers of yogurt because
they "insisted on opening by themselves." He gave the girls their "tablets to
play with, because that's what they like to do" and watched them as they returned
to their room, "got on their bed and closed the door."
Defendant returned to his bedroom with Dina to explain he was feeling
suicidal. When he did not get "any responses" from her, defendant testified:
I put the gun to my head. She looked at me and she like tried to -- what she did she pushed it away. And she called me crazy and . . . then I told her not to try to stop me, just let me do it because nobody loves me.
I closed my eyes and I put the gun back to my head.
A-1085-20 4 ....
But everything just happened so fast when she tried to like -- when she came . . . at me and tried to grab the gun away from me and it went off. Now, it was really muffled. It wasn't loud. Anybody who's ever shot a firearm before knows that when a firearm's discharged close to your ear, you're [sic] ear's going to hurt like crazy. That didn't happen. Maybe it was because of how I was feeling, I don't know.
[(Emphasis added).]
According to defendant, immediately after he fired the handgun, Dina
"just [got] back on the bed regular . . . ." Based on Dina's seemingly banal
reaction, defendant thought "she was fine because she didn't seem like anything
was wrong with her." He did not attend to her injuries because he "didn't see
any blood at first." He looked around the room attempting to determine "where
that round was discharged" when he noticed Dina "had some speckles of blood
on her face, like on her right cheek." Defendant did not call 911 to report the
incident nor make any effort to summon medical assistance for his wife.
A Cape May County grand jury indicted defendant for first degree murder,
N.J.S.A. 2C:11-3(a)(1), second degree aggravated assault, N.J.S.A. 2C:12-1(b)
(1), second degree possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4(a)(1), and third degree hindering apprehension,
N.J.S.A. 2C:29-3(b)(1). Defendant entered into a negotiated agreement with the
A-1085-20 5 State and agreed to plead guilty to first degree aggravated manslaughter,
N.J.S.A. 2C: 11-4(a)(1), as a lesser included offense of first degree murder, and
third degree hindering apprehension. In exchange, the State agreed to
recommend that the court sentence defendant to an aggregate term of fifteen
years of imprisonment, subject to an eighty-five percent period of parole
ineligibility and five years of parole supervision, as mandated by the No Early
Release Act, N.J.S.A. 2C:43-7.2. On August 14, 2019, the Criminal Part
sentenced defendant in accordance with the terms of the plea agreement.
Division Services to the Children
After the Family Part placed the girls in the custody of their maternal
grandmother and step-grandfather, the Division immediately arranged to
provide them with trauma counseling through the Thrive Program. The children
were evaluated by clinician Jennifer Tapley, under the supervision of the
program's Executive Director L. Michelle Codington, who is a Certified Family
Trauma Professional.
The therapy sessions at the Thrive Program began towards the end of April
2018 and continued on a weekly basis for five to six hours. The counseling
reports reflected the children experienced severe trauma and repeated disturbing
language, some of which they may have heard in the home, including "[g]onna
A-1085-20 6 kill you" and "[n]eed to go get a doctor for . . . mommy in heaven because she
has a boo[-]boo on her head." The reports also stated the children were anxious
when separated from their caregiver or each other. The children's behavior
eventually began to show signs of progress. In a report to the Division dated
October 30, 2019, Executive Director Codington listed the following indications
of improvements:
Initially they could only sleep if they were in the same bed together. At school their cots had to be next to each other; and they would wind up on one cot. Now they now have separate beds at home and nap each day in school in separate rooms.
Initially, they were unable to verbalize their needs but instead they screamed at an ear-piercing level. They are now able to verbalize ALL of their needs which indicates their confidence that their safe grown-ups will meet their needs.
Prior to their mother's death, they were fully toilet trained (by age 2). After her death, they had frequent accidents and had to go back into pull ups. They are now back to toileting independently without accidents.
They ate very little following their mother's death. When they did eat, they were unable to sit (at the table or anywhere else) to eat but rather grabbed a bit of something and wandered in a hypervigilant manner. They are now able to sit calmly at the kitchen table and take each meal with other family members.
They were extremely dysregulated when treatment began. Their hypervigilance extended to the point of
A-1085-20 7 literally looking for danger around each corner, with highly exaggerated startle response, climbing up the side of any safe adult and responding with sobbing or high-pitched screaming. They now function independently.
Likewise, their caregivers exhibit even stronger capacities to regulate their own emotions (i.e. grief, sadness, overwhelm) as they model for the twins how to manage big feelings.
The Family Part did not order the Division to allow the children to visit
their biological father in prison. The Division nevertheless explored the
possibility of having the children visit defendant. However, defendant's status
as an inmate serving a lengthy sentence in a maximum-security correctional
facility immediately revealed the futility of that endeavor. Furthermore, Thrive
Executive Director Codington opined having any contact with defendant "could
re-traumatize" the children. In short, the Family Part concluded visitation with
defendant was not in the children's best interests.
Defendant's Psychological Evaluation
From July 2018 until the end of that year, a Division caseworker visited
defendant twice a month. During these interactions, defendant steadfastly
denied that his infant daughters were emotionally traumatized by their mother's
violent death. Oblivious to the fact he was confined in a penal facility, defendant
continued to assert he should be allowed to have direct contact with his
A-1085-20 8 daughters because no one knew his children better than him. Beginning in
January 2019, defendant declined to meet with the Division caseworker assigned
to his case. Following the Division's protocol, the caseworker continued to
reach out to defendant without success. These visits finally stopped on
March 13, 2019.
On March 20, 2019, the Family Part conducted a permanency hearing
where the court dismissed the Title Nine complaint and adopted the Division's
permanency plan to terminate defendant's parental rights, followed by adoption
by the maternal grandmother and step-grandfather. The court found this
approach was in the best of interest of the children. On April 18, 2019, the
Division filed this guardianship complaint.
The Division retained psychologist Dr. James Loving to perform a
bonding evaluation of defendant and the children to determine whether
severance of his parental relationship was in the best interest of his daughters.
Dr. Loving opined a bonding evaluation with defendant was not in the children's
best interest because such an encounter was likely to retraumatize them. The
court determined visitation was not in the children's best interest. The court
allowed Dr. Loving to perform a caregiver bonding evaluation between the
children and their maternal grandparents.
A-1085-20 9 Guardianship Trial
The Family Part conducted the guardianship trial on October 13, 2020,
and October 20, 2020. On November 18, 2019, the court conducted a plenary
hearing and granted the Division's motion, over the objection of defendant's
counsel, to admit Thrive Director Codington as an expert witness in the field of
"trauma focused therapy for children." 3 Codington also explained it would be
detrimental to the girls' emotional development to be in direct contact with
defendant:
Q. Do you think the girls are able to make a choice right now as to whether or not they want to see their [father?]
A. Absolutely not. Developmentally they’re very fragile. Their healing has begun, but it is far from over. Any change in their environment at all has proven to be very troublesome for them. Predictability is essential. Their functioning is reflective of that.
3 The judge has the discretion to admit a witness as an expert under N.J.R.E. 702 and N.J.R.E. 703, provided the proposed witness satisfies three core requirements: (1) the intended testimony must concern a subject matter that is beyond the ken of the average fact-finder; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. Townsend v. Pierre, 221 N.J. 36, 534 (2015). We discern no legal or factual basis to conclude the judge abused her discretion in admitting Codington as an expert in the field of focused trauma therapy for children.
A-1085-20 10 Q. Okay. And, what do you think would happen based on your talking to your therapist that is treating the girls and what you know? What do you think would happen if we would make these girls go through a bonding [evaluation?]
A. If choice was taken away, if they were subjected to an unfamiliar environment and unfamiliar people, and this would be the first contact they would have with their father since the murder of their mother, it would be tremendously traumatizing.
The judge also considered Codington's testimony in reaching her final
decision to terminate defendant's parental rights. In her October 30, 2019 report
to the Division, Codington provided a comprehensive review of the children's
therapeutic progress. She also discussed the vestiges of the emotional harm the
girls endured on the day defendant shot and killed their mother. 4 Codington's
report includes how a seemingly ordinary moment in the girls' lives can reveal
how they continue to struggle with the memories of this horrific event.
[Ivy] and [Gina] have used words to describe some bits and pieces that they do recall from the tragic events of April 11, 2018. While taking a bath one day, [Ivy] made a "finger gun" with her hand and said: "My daddy had a gun, Mimi. (child made a "pow-pow" noise)[.] He shot my mommy and there was bleed [sic] all over." Language such as this suggests that the child was recounting (to the best of her ability) what she experienced in age-appropriate language. Other
4 Defendant's admission of criminal culpability in causing Dina's death is legally definitive and was properly considered in this context. A-1085-20 11 indications that the girls actually witnessed the gruesome details of the murder include their initial avoidance of anything red (even [P]lay[-]doh) as it seemed to remind them of mother's blood, their extremely strong reactions to anything that resembled a gun and their specific reference to the location of mother's wound ("boo[-]boo on her head").
The judge also considered the testimony of Division caseworker Jessica
Davis, who was assigned to the case in April 2019. Davis testified she attempted
to arrange for defendant, who was incarcerated at all times, to have contact with
the girls. The nature of the penal institution where defendant was detained made
it impossible to create an appropriate environment for the children. Davis also
informed the judge the girls had made significant progress since residing with
their maternal grandmother.
The girls are both potty trained fully again. They are doing much better sleeping through the night now. Their night terrors have pretty much disappeared. It's very infrequent that they happen at all now. The girls do well with being separated. Last year in pre-K they started in separate classrooms. At first it was a little difficult for them at first, but the separation ended up being good for them. They started gaining some independence, forming you know friendships on their own outside of each other. They are sleeping through the night, most nights now. [Their] eating has improved. Like [any] five[-]year[-]old they're picky at times, but . . . you know they eat well like they should.
A-1085-20 12 You know they're still afraid of the dark at times but not like they used to be. So, overall they have really made some leaps and bounds.
Davis investigated allegations made by defendant's father that the girls
were mistreated and abused by the maternal grandparents. None of the
allegations involving physical abuse were substantiated. However, the Division
became aware of an alleged incident of inappropriate contact by a cousin who
resided with the maternal grandparents. The Division confirmed the
grandparents were not aware of this alleged behavior. The grandparents agreed
to be more vigilant and to ensure the girls had constant supervision. No further
incidences occurred, and the cousin was moved into another room before
ultimately moving out of the grandparents' home. The Division did not find
competent evidence to support a change in the girls' custodial arrangement.
Dr. Loving was the Division's second and last witness at the guardianship
trial. He conducted a psychological evaluation of defendant to determine
whether "he would be capable of regaining custody of his daughters in the
foreseeable future, whether that would be a safe and healthy plan for the girls."
However, Dr. Loving did not complete a bonding evaluation of defendant
because, in light of the salient facts of this case, he firmly believed it was not in
the best interests of the children. According to Dr. Loving, defendant did not
A-1085-20 13 appreciate the harm the girls had endured in being present when their mother
was shot and killed. He explained:
It's unclear to me exactly what happened, but I would expect most reasonable people might be doubtful, might express skepticism about his girls being traumatized as young as they were . . . and the way that the incident played out. But what I'm describing for him that I think is important is qualitatively different than that. What I'm describing is a rigid denial of even the possibility that the girls were affected by what happened that day. And by affected, I mean traumatized in the sense of having seen or been affected emotionally by what happened.
Dr. Loving was astonished by defendant's inability to appreciate how this
violent event may have permanently jeopardized the mental health and
emotional wellbeing of his infant daughters. Because Dr. Loving did not
perform a bonding evaluation of defendant, he was unable to determine the
degree of harm that would result from terminating defendant's parental rights.
However, he concluded the maternal grandparents were willing and capable of
mitigating any harm that might result. He also opined that removing the girls
from their grandparents' care would place them at a serious risk of harm.
Defendant's lengthy prison sentence, coupled with his lack of empathy and
emotional insight, rendered him unable to ameliorate that harm.
A-1085-20 14 Defendant testified on his own behalf. He recounted the events of
April 11, 2018, and denied responsibility for any harm suffered by his
daughters. On cross-examination, he admitted he left Dina's seemingly lifeless
body on the bed, left the house with his two-year-old daughters, and did not take
any measures to alert the authorities about his wife's medical condition until
after he reached Philadelphia, about one hour and forty-five minutes later.
Defendant also admitted his actions "potentially" placed his children in grave
danger by discharging a firearm in a room that was next to their bedroo m.
Against this factual backdrop, Judge Susan M. Sheppard, the Presiding
Judge of the Family Part in Cape May County, issued a comprehensive oral
opinion on November 25, 2020, followed by a twenty-five-page Summary
Decision that addressed each of the four statutory-prongs codified in
N.J.S.A. 30:4C-15.1(a). The judge found the Division proved, by clear and
convincing evidence, the termination of defendant's parental rights to his
biological daughters Ivy and Gina was in the best interest of these children. We
agree with Judge Sheppard and affirm.
II
This court reviews a judgment of termination of parental rights mindful
that we are bound to uphold the Family Part judge's factual findings as long as
A-1085-20 15 they are supported by "adequate, substantial, credible evidence." Cesare v.
Cesare, 154 N.J. 394, 411-12 (1998). Our Supreme Court adopted this
deferential standard of review because Family Part judges are presumed to have
a "specialized knowledge and experience in matters involving parental
relationships and the best interests of children." N.J. Div. of Youth & Fam.
Servs. v. F.M., 211 N.J. 420, 427 (2012). Furthermore, we are bound to defer
to the trial court's credibility determinations because the trial judge's p roximity
to the litigants provides "a 'feel of the case' that can 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)).
Here, defendant raises the following arguments: (1) the Family Part
erroneously relied on and extrapolated facts from defendant's judgment of
conviction in the Criminal Part; (2) the court erred in relying on the testimony
of the children's therapist and her supervisor and by denying defendant the right
to visit the children; (3) the trial court's opinion does not satisfy the requirements
under Rule 1:7-4; (4) the court erred by concluding, as a matter of law, that the
Division satisfied the requirements under prongs I and II in N.J.S.A. 30:4C-
15.1(a); (5) the court erred in concluding, as a matter of law, that the Division
A-1085-20 16 made reasonable efforts to avoid termination of defendant's parental rights; and
(6) the court erred in concluding that termination of parental rights would not
do more harm than good.
Before we address defendant's arguments, we note that argument points
(1), (2), and (3) were not raised before the trial court. Thus, we review these
arguments under the plain error standard codified in Rule 2:10-2. This standard
requires us to disregard any error or omission "unless it is of such a nature as to
have been clearly capable of producing an unjust result . . . ." However, this
court "may, in the interests of justice, notice plain error not brought to the
attention of the trial or appellate court." Ibid. In this light, defendant's argument
points (1) and (2) not only fail to meet this enhanced standard of review, but
also lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Although not subject to the plain error standard, defendant's remaining
arguments are equally meritless. Even a cursory review of her Summary
Decision shows Judge Sheppard did not decide the outcome of this guardianship
trial merely as a matter of law. The judge carefully reviewed the testimony of
the Division's witnesses, as well as defendant's own testimony. The judge then
A-1085-20 17 applied the four statutory prongs and found the Division met its burden of proof
by clear and convincing evidence.
N.J.S.A. 30:4C-15.1(a) states:
The [D]ivision shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to . . . [N.J.S.A.] 30:4C-15) if the following standards are met:
(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 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.
This court is well aware of the magnitude of the power entrusted to the
judiciary in the area of parental rights and the equally awesome responsibility
to safeguard and protect the welfare of children. As this court noted nearly
twenty years ago:
A-1085-20 18 Parents have a fundamental constitutional right to raise their children. Stanley v. Illinois, 405 U.S. 645, 651 (1972); N.J. Div. of Youth and Fam. Servs. v. A.W., 103 N.J. 591, 599 (1986). However, the constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. Parham v. J.R., 442 U.S. 584, 603 (1979); In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
[N.J. Div. of Youth & Fam. Serv. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002).]
More recently, we reaffirmed our commitment to scrupulously protect the
parent-child bond and noted: "After the elimination of the death penalty, we can
think of no legal consequence of greater magnitude than the termination of
parental rights." In re Adoption of Child by J.E.V., 442 N.J. Super. 472, 481
(App. Div. 2015). We are convinced Judge Sheppard correctly applied the
statutory standards to the relevant, and essentially uncontested, facts to conclude
the Division proved, by clear and convincing evidence, that termination of
defendant's parental rights is in the best interests of these two girls.
The material facts that form the legal basis of this case are undisputed.
On April 11, 2018, defendant, without regard to the safety of his two -year-old
daughters, recklessly shot and killed his wife by discharging a handgun in a
room located adjacent to the girls' bedroom. Defendant's actions, under these
circumstances alone, manifested an extreme indifference to the welfare of his
A-1085-20 19 children. Furthermore, motivated exclusively by his own self-interest,
defendant absconded from this horrific scene, taking his two infant daughters
with him, and leaving the mother of his children to die alone.
After his mad dash from the crime scene, defendant did not take any
measures to notify emergency medical services of his wife's fatal condition
during the nearly two-hour drive to his mother's residence in Philadelphia. The
professionals who specialize in counseling children who have experienced this
level of emotional trauma and psychic harm testified it is in the children's best
interest not to have any contact with defendant.
After carefully considering the record and evidence presented at the
guardianship hearing by the Division and defendant, Judge Sheppard made the
following findings:
This court finds the testimony provided by Dr. Loving to be very compelling regarding the children's best interest. It is in their best interest to remain with their Grandparents, Mimi and Papa who have expressed their desire and willingness to adopt them. These Grandparents, despite the tragedy of losing a daughter, have creditably illustrated to this court that they can and will provide for the health, safety, and stability of [Ivy] and [Gina] and are able to mitigate any potential harm that could arise with termination of [defendant's] parental rights and the death of their mother.
This court finds that the [maternal grandparents] provide a permanent and stable home for the children.
A-1085-20 20 Further, this court finds that reunification with [defendant] is not possible and would be detrimental and cause lasting harm to [Ivy] and [Gina]. Therefore, the Division has met its burden under this prong by clear and convincing evidence.
We have nothing more to add to Judge Sheppard's analysis and
conclusions. We thus affirm substantially for the reasons expressed by Judge
Sheppard in her oral decision delivered from the bench on November 25, 2020,
and subsequently memorialized in her Summary of Decision.
Affirmed.
A-1085-20 21