NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.B.,1

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APPROVAL OF THE APPELLATE DIVISION
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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,

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.

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

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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).
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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.

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....

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

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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

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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

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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

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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.

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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.

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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.
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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.

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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

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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.

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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.

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

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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

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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

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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:

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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

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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.

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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.

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