Dcpp v. S.S. and P.F., in the Matter of the Guardianship of J.F. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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).
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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.
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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.
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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.
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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
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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."
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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
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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
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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.
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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
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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
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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.
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Affirmed.
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