Dcpp v. J.M.D., in the Matter of the Guardianship of J.M.S. and H.B.S.
CourtNew Jersey Superior Court Appellate Division
Date FiledOctober 23, 2026
DocketA-0352-25
StatusUnpublished
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Full Opinion
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NOT FOR PUBLICATION WITHOUT THE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-0352-25
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
J.M.D.,1
Defendant,
and
J.M.S.,
Defendant-Appellant.
________________________
IN THE MATTER OF THE
GUARDIANSHIP OF J.M.S.
and H.B.S., minors.
________________________
Submitted September 30, 2026 – Decided October 23, 2026
1
We use initials and pseudonyms to protect the confidentiality of these
proceedings. R. 1:38-3(d)(12).
Before Judges Mayer and Vinci.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FG-15-0018-24.
Jennifer N. Sellitti, Public Defender, attorney for
appellant (Catherine Wilkes, Assistant Deputy Public
Defender, of counsel and on the briefs).
Jennifer Davenport, Attorney General, attorney for
respondent (Janet Greenberg Cohen, Assistant Attorney
General, of counsel; Julie B. Colonna, Deputy Attorney
General, on the brief).
Jennifer N. Selletti, Public Defender, Law Guardian,
attorney for minors J.M.S. and H.B.S. (Meredith Alexis
Pollock, Deputy Public Defender, of counsel; David B.
Valentin, Assistant Deputy Public Defender, of counsel
and on the brief).
PER CURIAM
Defendant J.M.S. (father) appeals from a September 5, 2025 judgment of
guardianship terminating his parental rights to his biological daughters J.M.S.
(Jill), born in 2018, and H.B.S. (Helen), born in 2022. He focuses his argument
on the trial judge's rejection of the paternal grandmother (PGM) as a viable
alternative to termination of his parental rights. We affirm.
Based on the limited issue presented on appeal, we summarize the facts
relevant to the judge's termination of father's parental rights and rejection of the
PGM as a viable alternative to termination. Both parents have extensive
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substance abuse issues which led respondent New Jersey Division of Child
Protection and Permanency (Division) to obtain court-ordered custody of the
children. The children were then placed in a non-relative resource home. Jill
and Helen remain with the same non-relative resource family since being placed
by the Division.
After the Division obtained custody of the children, the PGM attempted
to contact the Division to express her interest in caring for Jill and Helen.
Because father initially told the Division that the PGM was receiving treatment
for cancer, the Division ruled her out as a potential caregiver.2
Eventually, the Division and the PGM discussed caring for the children.
The judge ordered the Division to evaluate the PGM as a possible placement for
the children. Because the PGM lived in North Carolina, the PGM agreed to
participate in an Interstate Compact on the Placement of Children (ICPC)
assessment.3
While awaiting completion of the ICPC assessment, the Division
investigated the PGM as a potential placement for Jill and Helen. During the
2
Father subsequently told the Division the PGM was three-years cancer free.
3
An ICPC assessment is an evaluation to determine whether an out-of-state
domicile will meet a child's needs. N.J.S.A. 9:23-5.
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investigation, the Division found the PGM had a final restraining order against
her and still had health issues.
After many months, the ICPC assessment was completed. North Carolina
approved the PGM's application to care for the children in that state.
Based on the results of the ICPC assessment, the judge ordered the PGM
to undergo psychological and bonding evaluations with David Brandwein,
Psy.D. Dr. Brandwein's evaluation of the PGM took place in September 2024.
He found Jill and Helen were comfortable with the PGM and noted no conditions
"that would suggest [the PGM] present[ed] a risk" to either child. Dr. Brandwein
further found the PGM to be in good health.
Consistent with N.J.S.A. 30:4C-15, Dr. Brandwein concluded placing the
children with the PGM was the "most clinically supported option." Based on
Dr. Brandwein's evaluations and conclusions, the judge adjourned the
guardianship trial and approved the Division's plan to explore placement of the
children with the PGM.
The Division developed a visitation plan for the PGM and the children.
Under the plan, the PGM would travel to New Jersey for visits with Jill and
Helen. The Division also discussed the difference between kinship legal
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guardianship (KLG) and adoption. The PGM stated she preferred the KLG
option.
On January 28, 2025, the judge rejected the Division's plan for KLG
placement of the children with the PGM. The judge found it "difficult to
understand . . . that these two children have never spent an overnight with [the
PGM] that we can come to the conclusion that [KLG] is an appropriate plan."
Based on this concern, the judge again adjourned the trial to facilitate overnight
visits in New Jersey between the PGM and the children.
The PGM's first overnight visit was scheduled for February 1, 2025.
Because Helen was ill with reactive airway disease (RAD),4 only Jill
participated in this scheduled overnight. The Division advised the PGM that
Helen suffered from RAD, and Helen should not be exposed to second or third-
hand smoke.
When asked about her overnight visit with the PGM, Jill told the Division
the PGM went outside to smoke "orange and white sticks" and, when the PGM
returned, "smell[ed] funny." A Division case manager noted a strong smell of
smoke during visits to the home while the PGM was in New Jersey. The PGM
denied smoking but admitted vaping to the Division's case manager. The case
4
Due to her premature birth, Helen developed RAD.
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manager reminded the PGM about Helen's RAD and reiterated that Helen should
not be exposed to smoke.
The Division became concerned regarding the PGM's smoking. Thus, it
requested visitation take place in a new location to be approved by the Division.
On February 24, 2025, Jill and Helen visited overnight with the PGM at the new
location.
A Division case worker explained the car seats provided for the PGM's
visits with the children had a "strong odor of cigarette smoke." Due to the
Division's concerns that the PGM may be smoking in the car while transporting
the children, the Division discontinued additional overnight visits. The Division
also obtained a doorbell camera photograph showing the PGM smoking outside
during a visit with the children. The PGM again denied smoking.
On March 13, 2025, the judge allowed the Division to submit a revised
permanency plan. The revised plan sought termination of father's parental rights
and adoption of the children by the non-relative resource parents.
On May 19, 2025, Dr. Brandwein revised his previous evaluations based
on updated records forwarded for his review. The additional documents
pertained to the PGM's visits with the children. After reviewing these
documents, Dr. Brandwein amended his prior opinion regarding the PGM's
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ability to serve as the children's caregiver. Based on the PGM's purported
smoking, concerns the PGM left the children with an unapproved adult, and
failure to prioritize the girls' physical and psychological well-being, Dr.
Brandwein concluded the PGM would be unable to serve as a full-time caregiver
for Jill and Helen and supported adoption of the children by the non-relative
resource parents.
In July 2025, the guardianship trial proceeded under the Division's revised
permanency plan. Regarding the ability of the PGM to be a caregiver to the
children, Dr. Brandwein testified that he was "worried about the [PGM] and her
partner's ability to prioritize the children [and] provide a safe environment,
especially for [Helen]." Dr. Brandwein opined termination of parental rights
would not do more harm than good.
The judge also heard testimony from one of the non-resource parents.
That individual testified the children had been in their care since November
2022. She further explained she and her husband preferred adoption over KLG,
citing the children's wish to remain with their family and the children's tender
ages and best interests. She also testified she understood the difference between
KLG and adoption. The testifying non-resource parent stated they would allow
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future contact with the children's biological parents if such contact was in the
children's best interests.
The PGM testified at the guardianship trial. She told the judge her health
was "excellent" after receiving a bone marrow transplant and her cancer was in
remission.
The PGM also told the judge about efforts to contact the Division to serve
as the children's caregiver. According to the PGM, she immediately contacted
the Division and had to wait several weeks for a response. She claimed the
Division rejected her serving as the children's caregiver based on a twenty-year-
old restraining order. The PGM also told the judge she was a licensed foster
care provider in North Carolina, and the ICPC assessment approved her home
for the children's placement.
At trial, the PGM was asked about her New Jersey visits with the children.
Regarding the allegation that the PGM smoked, the PGM testified she did not
smoke around the children. The PGM also testified she was told Helen could
not be exposed to cigarette smoke but denied being told Helen had RAD. The
PGM further testified the children's car seat smelled of carbon monoxide, not
cigarette smoke, and the doorbell camera picture was a "prank" played on her
by the babysitter.
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The judge also questioned the PGM. The PGM confirmed the biological
parents were living in North Carolina. However, the PGM explained the
biological parents did not live with her.
After hearing the testimony and reviewing the trial exhibits, on September
5, 2025, the judge entered a judgment of guardianship terminating father's
parental rights. The judge found the Division's witnesses were credible.
Additionally, the judge found Dr. Brandwein's testimony "most credible," citing
the doctor's "willingness to reevaluate his position and recommendations
demonstrate[d] his commitment to professional integrity."
The judge did not render any outright credibility findings regarding the
PGM's testimony. However, the judge found the PGM's responses to questions
during trial were "angry and defensive." The judge stated the PGM was
"abrasive to all the attorneys," "paid no attention to the instruction of the court,"
and "refused to acknowledge her accountability for any of the issues which arose
during her extended visit . . . of February 2025." The judge expressed her
"concern[] with the demeanor of [the PGM] during the trial."
The judge rendered findings under all four prongs of the best interests of
the children test under N.J.S.A. 30:4C-15.1(a). The judge concluded the
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Division met all four prongs of the statutory test, clearly and convincingly, based
on the evidence adduced during the trial.
As to the second part of prong three, N.J.S.A. 30:4C-15.1(a)(3),
consideration of alternatives to termination of parental rights, the judge
concluded the Division explored and properly ruled out alternatives to
termination of father's parental rights. The judge determined the Division
explored placing the children with the PGM, but visitation with the children in
New Jersey was "fraught with difficulties." After receiving updated information
regarding the PGM's visits with the children in New Jersey, the judge relied
heavily on Dr. Brandwein's revised recommendation supporting termination of
father's parental rights.
On appeal, father raises a single argument. 5 He asserts the judge erred in
rejecting the PGM as an alternative to termination of his parental rights. He
argues we should reverse the termination of his parental rights and remand the
case to the trial court to consider whether adoption by the non-relative resource
parents or KLG with the PGM is in the best interests of Jill and Helen. We
reject these arguments.
5
Father does not challenge the judge's findings under prongs one, two, and four
of the best interests test.
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"Review of a trial court's termination of parental rights is limited." N.J.
Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). We uphold
a family judge's factual findings if supported by substantial credible evidence in
the record. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49
(2012). Credibility determinations are entitled to particular deference due to the
family judge's superior position in evaluating the veracity of witnesses. N.J.
Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). "Indeed, we
defer to family part judges 'unless they are so wide of the mark that our
intervention is required to avert an injustice.'" N.J. Div. of Child Prot. &
Permanency v. A.B., 231 N.J. 354, 365 (2017) (quoting F.M., 211 N.J. at 427).
N.J.S.A. 30:4C-15.1(a) balances a parent's right to raise their child and
the State's responsibility to protect the welfare of the children. See also N.J.
Div. of Child Prot. & Permanency v. D.C.A., 256 N.J. 4, 20 (2023). That balance
"is achieved through the best interests of the child standard." Ibid. (quoting in
re Guardianship of K.H.O., 161 N.J. 337, 347 (1999)).
The Division bears the burden of satisfying each prong of N.J.S.A. 30:4C-
15.1(a). The second part of the third prong, N.J.S.A. 30:4C-15.1(a)(3), requires
the court to "consider[] alternatives to termination of parental rights." Father
challenges the judge's findings under the second part of the third prong of the
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statutory best interests test. Under this prong, the Division must "prove by clear
and convincing evidence that 'alternatives to termination of parental rights' have
been appropriately considered." N.J. Div. of Youth & Fam. Servs. v. J.S., 433
N.J. Super. 69, 87 (App. Div. 2013) (quoting N.J.S.A. 30:4C-15.1(a)(3)).
Here, the judge found the Division clearly and convincingly satisfied
N.J.S.A. 30:4C-15.1(a)(3). The judge, recognizing the statute's preference for
KLG placement rather than adoption, directed the Division to facilitate visits
between the PGM and the children in New Jersey. The Division arranged for
the PGM to have overnights with the children in New Jersey. At trial, the
Division presented sufficient credible evidence that those overnight visits were
fraught with numerous "difficulties."
The judge noted the PGM was informed about Helen's health issue and
could not be exposed to smoke. However, Jill and a Division case manager
reported the PGM smelled of smoke. Another Division case manager also
reported the children's car seats and home where the overnights took place also
smelled of smoke.
The judge did not rely solely on the smoking testimony to conclude
placing the children with the PGM was not in their best interests. The judge
found the PGM lacked any plan for raising the children in North Carolina.
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Additionally, the judge stated the PGM was "argumentative" and
"confrontational" during the guardianship trial. The judge explained the PGM
"was trying to portray herself as above reproach and instead made a poor
appearance in court." It was the PGM's own demeanor and presentation during
the trial that led the judge to conclude the PGM was unable to prioritize the
needs of the children over her own needs. Additionally, contrary to the father's
argument, the judge did not rely on the twenty-year old final restraining order
against the PGM in reaching her decision.
The facts leading the Division to rule out the PGM as an appropriate
caregiver were amply supported by clear and convincing evidence in the record.
We are satisfied the judge correctly concluded the Division attempted to locate
a suitable caregiver for the children but was unable find any reasonable
alternatives to the termination of father's parental rights.
To the extent we have not specifically addressed any of father's
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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