Dcpp v. J.R. and M.B., in the Matter of the Guardianship of A.B. and K.B.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0593-24 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.R., Defendant, and M.B., Defendant-Appellant. __________________________ IN THE MATTER OF THE GUARDIANSHIP OF A.B. and K.B., minors. __________________________ Submitted September 16, 2026 – Decided October 1, 2026 Before Judges Currier, Puglisi and Jacobs. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-0044-24. Jennifer N. Sellitti, Public Defender, attorney for appellant (Daniel A. Dilella, Designated Counsel, on the briefs). Jennifer Davenport, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorney General, of counsel; Alicia Y. Bergman, Deputy Attorney General, on the briefs). Jennifer N. Sellitti, Public Defender, Law Guardian, attorney for minors (Meredith Alexis Pollock, Deputy Public Defender, of counsel; David B. Valentin, Assistant Deputy Public Defender, of counsel and on the briefs). PER CURIAM Defendant M.B. appeals from the October 8, 2024 Family Part judgment terminating his parental rights to his daughters, A.B. and K.B., 1 and from the September 19, 2025 amended judgment entered after a limited remand as to K.B. We affirm. I. 1 We use initials to identify the parties and minors to protect their privacy and confidential information in the record. R. 1:38-3(d)(12) and N.J.S.A. 9:6- 8.10a(a). A-0593-24 2 We summarize the salient facts drawn from the record. M.B. and J.R. are the biological parents of sisters K.B. and A.B., born in 2010 and 2013, respectively. The family came to the attention of the Division of Child Protection and Permanency ("DCPP" or "the Division") years before this litigation. In 2012, the Division removed K.B. following an incident involving alcohol use and domestic conflict between the parents. After the Division provided services, the children were returned to the parents' joint legal and physical custody. In 2015, the Division received a referral alleging M.B. had filed a temporary restraining order against J.R., and later that year M.B. was awarded sole legal and residential custody of the children. In January 2020, the Division received a referral alleging M.B. used illicit drugs and neglected the children. M.B. refused a substance abuse evaluation and remained difficult to contact. After learning the children had moved to Virginia to live with their paternal aunt, the Division referred the matter to Virginia Child Protective Services. The children returned to New Jersey in late 2021 and enrolled in school. The events leading to the present litigation began in April 2022, when the Division received a referral from A.B.'s elementary school. At that time, the A-0593-24 3 children were living in a shelter with M.B. The reporter stated K.B. and A.B. said they felt unsafe with M.B. because he nodded off and fell asleep while driving. The reporter further stated M.B. took the children to work sites, left them unattended in the car or at stores while he worked, and on some occasions returned to the shelter with them too late for dinner. The Division opened an investigation and assigned a caseworker to interview M.B. He denied substance abuse and explained that exhaustion from overwork and lack of adequate sleep caused his fatigue. He said he brought the children to job sites because he had no other childcare options. The caseworker observed M.B. appeared tired and spoke with slurred speech during the interview but did not believe he was under the influence. In early May, K.B.'s middle school reported that, according to K.B., M.B. used "medicine" through a straw, kept the substance under the seat of his vehicle, and had K.B. and A.B. provide urine in cups so he could pass drug tests. K.B. said she no longer felt safe with her father. Three days later, the Division received another referral from a school therapist in which K.B. repeated concerns about M.B.'s drug use. Later that day, the Division met with M.B. at the school. He denied the allegations but agreed to undergo a substance abuse evaluation. K.B. told the investigator she did not A-0593-24 4 want to be with her father because his unsafe driving, lack of sleep, poor care, and yelling made her and her sister feel worried and unsafe. Later that evening, a school counselor reported that a man other than M.B. had picked up the children from a school dance claiming to be their caregiver. The Division responded, met M.B., and decided to remove the children that evening. The Division asked M.B. to sign a Dodd letter, 2 which he refused. The children were then removed and placed together with resource parents D.B. and J.B. On May 17, 2022, the court upheld the removal and granted the Division care, custody, and supervision of the children because of M.B.'s substance abuse and reports that the children were fearful of spending any further time with him based on his alleged conduct. The court ordered visitation between M.B. and the children would not occur until the children wanted it and a therapist recommended it. Soon after, M.B.'s circumstances deteriorated. In early June, he reported he was homeless or staying in unstable places, including a trailer. Days later, he underwent a substance abuse evaluation. After an oral swab tested positive 2 A Dodd letter triggers an emergency removal of a child from parental custody without a court order pursuant to N.J.S.A. 9:6-8.21 to -8.82. See N.J. Div. of Youth & Fam. Servs. v. P.W.R., 205 N.J. 17 , 26 n.11 (2011). A-0593-24 5 for cocaine, the evaluator recommended intensive outpatient treatment. Over the ensuing months, the Division documented M.B.'s repeated missed meetings, irregular contact, homelessness, and refusals to submit to random drug screens. He sometimes claimed he was in treatment, but he did not provide releases or reliable contact information allowing the Division to verify compliance. In August 2022, the court dismissed the Title Nine — child abuse and neglect — portion of the case because the Division classified its administrative findings as "not established" and "unfounded." However, the Title Thirty litigation, concerning child welfare and termination of parental rights, continued. In spring 2023, the court approved a permanency plan that contemplated reunification with J.R. or kinship legal guardianship (KLG). See N.J.S.A. 3B:12A-6(f). By early summer 2023 that changed. The court approved K.B.'s placement with her adult paternal half-sister, Ke.B., in Virginia.3 A.B. remained with the resource parents, D.B. and J.B., in New Jersey. The children thereafter lived in separate homes. 3 We adopt the designation "Ke.B." advanced in M.B.'s merits brief, to differentiate the child K.B. from her adult half-sister with the same initials. A-0593-24 6 By late 2023, M.B. had not demonstrated stability, having failed to verify substance abuse treatment, obtain permanent housing, or consistently participate in Division-provided services. J.R. executed an identified surrender as to A.B. in December 2023. In January 2024, the court approved a permanency plan of termination of parental rights followed by adoption for A.B. In March, the Division filed a guardianship complaint to include both children. At the start of trial in August 2024, J.R. executed an identified surrender as to K.B. in favor of Ke.B. The guardianship trial then proceeded only as to M.B. M.B. did not appear for trial. The Division called K.B., Division caseworker Sabrina Andre, and A.B.'s resource parents, D.B. and J.B. The Law Guardian called psychologist Denise Williams Johnson, Ph.D. Ke.B. testified K.B. had lived with her in Virginia since July 2023. She described K.B. as thriving, having made the cheer squad and honor roll. She testified K.B. wanted adoption, not KLG, and feared continued parental authority. Ke.B. was willing to support some family contact, but testified contact with M.B. was questionable and would depend on K.B.'s comfort. Caseworker Andre testified about the Division's efforts and M.B.'s lack of cooperation. She described repeated referrals for substance abuse treatment and evaluation, repeated attempts to meet with him, and repeated missed A-0593-24 7 opportunities. She testified M.B. often said he wanted to see the children but did not do the work necessary to move toward therapeutic contact. She also testified both children were doing well in their respective placements and wanted to remain there. D.B. and J.B. testified they wanted to adopt A.B. They said the Division explained the difference between adoption and KLG more than once and they signed acknowledgement forms. They testified A.B. wanted permanence and closure, feared her father, and did not want contact with him. D.B. stated A.B. remained connected to maternal grandparents and cousins, and she was willing to support sibling contact with K.B. J.B. testified KLG would leave "the door open" and prevent A.B. from healing. Dr. Johnson evaluated both children. She found A.B. suffered significant trauma symptoms resulting from years of parental fighting, object throwing, instability, neglect, and exposure to substance abuse. A.B. had recalled living in vehicles, missing meals, missing school, and fearing her parents would stop caring for her entirely. A.B. described M.B. falling asleep while driving and explained that she and K.B. took turns watching him and waking him. She remained afraid in cars, feared the dark, and feared her father would find her and remove her from D.B.'s home. Dr. Johnson diagnosed post-traumatic stress A-0593-24 8 disorder (PTSD) and identified high anxiety, trauma intrusion, and trauma avoidance. She opined forced contact with M.B. would restimulate the trauma and concluded termination would not do more harm than good because A.B. had formed a strong attachment to her resource family, wanted adoption, and needed permanence. As to K.B., Dr. Johnson found similar, and in some respects more pronounced, trauma. K.B. described witnessing both parents' substance abuse, domestic conflict, lying, neglect, lack of clean clothes, and chaotic moves. She recalled M.B. taking her to drug houses, using drugs in the car, and falling asleep while driving. She reported he told her not to disclose information to the Division. Dr. Johnson found K.B. suffered from PTSD and attention-related deficits. She testified K.B. did not want contact with M.B., except that she had briefly considered a single phone call to tell him she wanted adoption. Dr. Johnson opined K.B. should not be forced into contact with him and that termination would not do more harm than good. On October 8, 2024, the trial court issued a written opinion and entered judgment terminating M.B.'s parental rights as to both children. The court found the Division proved all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. A-0593-24 9 M.B. timely appealed. While the appeal was pending, K.B.'s circumstances changed. In late spring 2025, the Division advised this court that Ke.B. requested K.B.'s removal after the death of her young child. K.B. returned to New Jersey and entered a new, non-relative resource home. M.B. moved for a remand of the entire case, while the Division cross- moved for a limited remand. On August 7, 2025, we denied M.B.'s motion and granted the Division's motion, directing the trial court to assess "the impact, if any, of K.B.'s change in placement on the trial court's prong three, part two and prong four findings under N.J.S.A. 30:4C-15.1(a)." The remand order did not reopen the entire guardianship matter. Following remand, the Family Part conducted further proceedings, including an evidentiary hearing in mid-September 2025. In those proceedings, the court determined that J.R.'s identified surrender as to K.B. had failed and reinstated J.R.'s parental rights as to K.B. M.B. appeared at the outset of the September 17 hearing, but left during the proceeding, "spewing profanities" according to the trial court. He did not return, nor did his counsel present witnesses or documentary evidence. The Division called current caseworker Sheira Director-Nowack. She testified K.B., then nearly fifteen, remained "vehement" that she wanted no A-0593-24 10 contact with M.B. She said K.B. was "petrified" that her mother's reinstated rights might somehow lead to contact with him. In the Division's view, even the possibility of renewed paternal authority would worsen K.B.'s trauma. Director- Nowack testified the Division's position had become stronger, not weaker, despite the failed adoption, because K.B.'s fear of M.B. remained acute. She also testified the Division's only successful contact with M.B. after remand occurred at the courthouse that day, and he responded with anger and disrespect. The Law Guardian again called Dr. Johnson, who conducted an updated evaluation of K.B. in September 2025. Dr. Johnson testified K.B.'s mental state had deteriorated. K.B. cried throughout the session, her PTSD symptoms had intensified, and her trauma score increased. K.B. remained adamant that she did not want visits or contact with M.B. Dr. Johnson opined that reinstating M.B.'s parental rights would do more harm than good, even if K.B. lacked a definitive adoptive plan. She testified there were no current or foreseeable circumstances under which contact with him would not cause significant harm. On September 19, 2025, the court issued an oral decision. At the outset, the court emphasized the limited nature of the remand, quoting our order that it was to assess "the impact, if any, of K.B.'s change in placement on the Trial A-0593-24 11 Court's Prong 3, Part 2 and Prong 4 findings under N.J.S.A. 30:4C-15.1(a)." The court found the remand evidence reinforced its original findings. As to prong three, part two, the court explained why KLG remained untenable as to M.B. Quoting from its original analysis, the court stated: "The [c]ourt specifically finds this ability for a birth parent to move to vacate KLG and regain custody of a child renders KLG untenable in this case." The court further observed K.B. was terrified by having to live with "the Sword of Damocles hanging over her, that at any moment her father could show up and try to get his rights back." As to prong four, the court relied on Dr. Johnson's updated opinion and noted "there are no current circumstances or circumstances in the foreseeable future where contact between K.[B.] and her birth father would not cause further significant harm." The court concluded reinstating M.B.'s parental rights would do more harm than good "irrespective of whether K.[B.] had a current, definitive permanency plan." The court ultimately found "the one thing this court could grant K.[B.] is peace of mind that her father is out of her life completely." The court then entered an amended judgment acknowledging the reinstatement of J.R.'s parental rights to K.B. but reaffirming that M.B.'s parental rights remained terminated. A-0593-24 12 On appeal, M.B. argues the children were improvidently removed in May 2022. He contends the removal occurred only because he was not physically present at the family friend's home that night, not because of actual abuse or neglect. He stresses the Division later classified the allegations against him as unfounded and contends the court therefore erred in finding prongs one and two. He next argues the Division failed to make reasonable efforts. Specifically, he maintains the Division did not adequately help him with housing, did not facilitate visitation, and allowed the case to progress to termination without giving him a meaningful opportunity to restore his relationship with the children. He also contends the Division did not preserve sibling contact. He further claims the court erred in its consideration of alternatives to termination. He asserts the Division unfairly controlled the presentation of KLG versus adoption to the resource parents and contends the court, not the Division, should have explained the options. He says the resource parents were not adequately informed. He also argues KLG remained a viable option, especially after K.B.'s placement changed and J.R.'s rights to K.B. were reinstated. Lastly, he argues the court used an improper "better off" analysis under prong four. He contends the evidence showed only that the children were doing A-0593-24 13 better in their resource homes, not that termination of his rights would not do more harm than good. In his supplemental brief, he argues the remand record required reinstatement of his rights as to K.B. because the planned adoption failed and the Division did not update the record concerning his current circumstances. II. The scope of our review is limited. We defer to the Family Part's factual findings when they are supported by competent, credible evidence and informed by live credibility determinations. N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008); N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007). We disturb those findings only when they are "so wide of the mark that a mistake must have been made." M.M., 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 69 (App. Div. 1989)). We owe no special deference to legal conclusions and review them de novo. Thieme v. Aucoin-Thieme, 227 N.J. 269, 283 (2016). In New Jersey, "[t]he balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard," as codified in N.J.S.A. 30:4C-15(c) and N.J.S.A. 30:4C-15.1(a). A-0593-24 14 In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). The four prongs of that standard are: (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).] The Division bears the burden to prove each prong by clear and convincing evidence. M.M., 189 N.J. at 280 . The prongs overlap and are not discrete or separate. K.H.O., 161 N.J. at 348 . We begin with M.B.'s challenge to prongs one and two. We reject his premise that the guardianship judgment turned on whether the May 13, 2022 allegations were later deemed unfounded. This case did not depend on a Title Nine abuse finding tied to a single night. A guardianship judgment under Title A-0593-24 15 Thirty does not require a prior abuse-or-neglect adjudication under Title Nine. More importantly, the record did not begin and end with May 13, 2022. It showed a broad and prolonged pattern of parental instability and risk of harm to the children. The children described parental fighting, substance abuse, unpredictable moves, missed school, poor hygiene, lack of food security, and exposure to dangerous adults. K.B. reported M.B. used drugs through a straw and had the children provide urine samples so he could pass screens. She also reported he fell asleep while driving. A.B. described living in vehicles, making her own food, and taking turns with her sister to keep M.B. awake in the car. Dr. Johnson linked those experiences to both children's current PTSD symptoms. The trial court was entitled to credit that testimony. M.B. points to the Division's later "unfounded" determination regarding the May 13 allegations. That classification did not erase the broader record, nor did it negate the court's finding that the parent-child relationship endangered the children's safety, health, and development. The court properly focused on the cumulative effect of the parental relationship over time. See K.H.O., 161 N.J. at 348 . A-0593-24 16 We also discern no error in the court's finding that M.B. was unwilling or unable to eliminate the harm or provide a safe and stable home. By June 2022, M.B. was homeless. He tested positive for cocaine and was referred to intensive outpatient treatment, which he did not complete. He later incurred additional legal and substance-related issues. He repeatedly missed appointments, refused or failed to provide stable addresses, and failed to appear for many hearings, court-ordered evaluations, and trial. The record supports the finding that he had not cured the problems leading to placement and that further delay would add to the children's harm. We next address prong three. The Division was required to make reasonable efforts, not guarantee success. The adequacy of those efforts must be judged in light of all the circumstances, including the parent's own participation. Here, the Division referred M.B. for substance abuse evaluation and treatment. It attempted repeated contact, pursued address information, and discussed housing assistance, including referral to community resources. It sought releases for treatment verification, communicated hearing dates, and attempted to develop a path toward therapeutic contact. The record reflects the court had contemplated some form of contact might be explored as the matter A-0593-24 17 moved toward trial. Yet the record does not show any therapist recommended in-person visitation, and M.B. did not do the work necessary to move the case to that stage. He missed meetings, resisted engagement, and failed to complete evaluations. On this record, the court did not err in finding the Division's efforts were reasonable. The sibling-contact issue does not alter the analysis. The record shows the children's relationship had become strained. D.B. testified that, with therapy, she believed they could rebuild the bond. She also testified she had no intention of preventing contact. The record further shows that distance, differing placements, and the children's emotional needs complicated the issue. The court properly concluded the limitations on sibling contact did not defeat prong three. We also reject the premise of M.B.'s KLG/adoption argument. The record shows the Division discussed KLG and adoption with the resource parents. Ke.B. testified she reviewed the distinction with both the caseworker and an attorney. D.B. and J.B. testified the Division discussed the alternatives twice and that they signed acknowledgement forms. Each resource home then gave concrete reasons for preferring adoption. K.B. wanted certainty and feared parental authority. A.B. wanted permanence and closure. The court did not A-0593-24 18 simply defer to a resource parent's preference; it weighed the children's fear, their therapeutic needs, and the legal consequences of KLG. That analysis was especially sound as to M.B. The court stressed that KLG preserves parental ties, including the possibility of later applications concerning custody and visitation. On remand, the court reiterated its earlier finding that "th[e] ability for a birth parent to move to vacate KLG and regain custody of a child renders KLG untenable in this case." The court further found K.B. was terrified by the prospect of having to live with "the Sword of Damocles hanging over her, that at any moment her father could show up and try to get his rights back." The evidence supports that determination. K.B. and A.B. did not merely prefer adoption; they feared their father. Dr. Johnson testified that forced contact, or even a realistic threat of renewed contact or authority, would restimulate their trauma symptoms and undo the progress made. On this record, we are satisfied the court reasonably concluded KLG was not a viable alternative to termination as to M.B. We reach the same conclusion on prong four. The question was not whether the children were "better off" in their resource homes in some generalized sense. The question was whether termination of M.B.'s parental rights would not do more harm than good. The court used the correct standard A-0593-24 19 and relied on expert testimony that the children had formed compensating attachments and that continuing their legal ties to M.B. would prolong or worsen their trauma. As to A.B., Dr. Johnson testified termination would not do more harm than good because A.B. had formed a stable, loving bond with D.B. and J.B., wanted adoption, and remained afraid of M.B. Her trauma history was specific and severe. Her continued fear around cars, darkness, and being found by her father supported the conclusion that termination would promote, not undermine, her emotional stability. As to K.B., the evidence was even stronger after remand. The failed adoption did not establish a healthy paternal bond or reveal a new path to reunification with M.B. Rather, it demonstrated only that K.B. suffered another major disruption. The remand record showed her symptoms had worsened. Dr. Johnson testified K.B.'s trauma score increased, she cried throughout the evaluation, and she remained adamant that she did not want contact with M.B. Director-Nowack testified K.B. was petrified that renewed contact with her mother might somehow open a door to her father. The court relied on that evidence and on Dr. Johnson's updated opinion that "there are no current circumstances or circumstances in the foreseeable A-0593-24 20 future where contact between K.[B.] and her birth father would not cause further significant harm. . . . Reinstating the birth father's parental rights would do more harm than good, irrespective of whether K.[B.] had a current, definitive permanency plan." The court ultimately found "the one thing this [c]ourt could grant K.[B.] is peace of mind that her father is out of her life completely." The record supports that determination. M.B. argues the remand should have included fresh evidence about his own current circumstances. However, our remand was expressly limited, and the trial court properly honored that limitation. Moreover, M.B. did not participate in the remand proceeding. He appeared, used profanity, and left the hearing. The court was not required to reopen the entire guardianship case or disregard the limited scope of the remand order. Finally, M.B. argues we should treat any unpreserved issues as plain error under Rule 2:10-2. We have considered his arguments on the merits. None reveal error clearly capable of producing an unjust result, as the rule provides. The court applied the correct legal framework and made detailed findings supported by substantial credible evidence. In sum, the record supports the court's conclusion that the Division proved all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence as A-0593-24 21 to both children, and that the remand evidence reinforced, rather than undermined, termination as to K.B. We therefore affirm the October 8, 2024 judgment and the September 19, 2025 amended judgment. Affirmed. A-0593-24 22