RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3055-20

C.S.,

Plaintiff-Appellant,

v.

J.B. and A.Y.S.,

Defendants-Respondents.

__________________________

Submitted September 14, 2022 – Decided October 21, 2022

Before Judges Vernoia and Natali.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Mercer County, 

Docket No. FD-11-0851-20.

Bernstein & Manahan, LLC, attorneys for appellant

(James P. Manahan, on the brief).

Matthew J. Platkin, Acting Attorney General, attorney 

for respondent New Jersey Division of Child Protection 

and Permanency (Sookie Bae-Park, Assistant Attorney 

General, of counsel; Jessica A. Prentice, Deputy 

Attorney General, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2

A-3055-20

In this appeal, plaintiff, C.S. (Cindy),

1

challenges a May 19, 2021 Family 

Part order that denied her application for custody of her then-four-year-old 

grandson J.B. (Junior), and instead maintained custody of Junior with the 

Division of Child Protection and Permanency (Division), which had previously 

removed Junior from the care and custody of his biological parents, A.Y.S. 

(Annie) and J.B. (John).

2

 We affirm. 

I.

In addition to Junior, Annie is the mother of J.G. (Jane). K.G. is Jane's 

father.

3 At the time of the trial court proceedings, Jane was twelve years old.4

 

According to the parties, in early 2019, the court granted the Division both legal 

1

In order to protect the confidential nature of records pertaining to the 

placement of the child at issue in this appeal we use pseudonyms in lieu of actual 

names. R. 1:38-3(d)(13). 

2 As confirmed by the court, John was served with the FN complaint and notified 

of the proceedings. He neither attended the plenary hearing held on May 18, 

2021, see infra at p. 8-13, nor has he participated in this appeal. 

3 K.G. similarly has not participated in this appeal. 

4 The facts detailed in our opinion are based upon the uncontested facts 

contained in the parties' merits briefs and the limited record provided. 
3

A-3055-20

and physical custody of Junior under the Title Nine FN docket.

5

 At the time the 

Division was granted custody of Junior, Jane had been in Cindy's physical 

custody for over a year. 

Cindy obtained physical custody of her granddaughter after she filed a pro 

se application under the FD docket, and without Division involvement, in 2017. 

According to Cindy, she sought custody of Jane because Annie "had a history 

of abandoning [Jane] [and] leaving [her] with other persons and not returning 

for days and because of suspected illegal substance abuse." She also was 

concerned that Jane "might be assaulted or otherwise harmed by those taking 

her into custody." 

5 The Family Part addresses and resolves various matters designated by specific 

docket types. As our Supreme Court has explained:

FM, which consists of divorce, marriage nullity, and 

separation maintenance matters. Other docket types 

include: FD, which consists of child custody, 

visitation, child support, paternity, medical support, 

and spousal support in non-divorce matters; FN, which 

consists of abuse and neglect matters; FG, which 

includes termination of parental rights matters; FC, 

which consists of child placement review matters; FL, 

which consists of kinship legal guardianship matters; 

and FV, which consists of domestic violence matters.

[N.J. Div. of Youth & Fam. Servs. v. I.S., 214 N.J. 8, 

22 n.3 (2013).]
4

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When the court granted the Division custody of Junior, Cindy expressly 

declined to be considered as a placement for him. She was accordingly 

dismissed from the FN litigation at her urging, but not before being notified that

Junior was placed in a non-relative resource home. 

The FN litigation involving Junior continued until June 2020, when the 

Division dismissed the matter after it filed a Title Thirty guardianship complaint 

under the FG docket in which it sought to terminate Annie and John's parental 

rights as to Junior only. Despite her initial refusal to be considered as a 

placement for Junior, Cindy sought custody of him over a year later by filing a 

complaint, again under the FD docket, in which she named only Annie and John 

as defendants. 

In a certification provided to the court in support of her custody 

application, Cindy explained that before being placed in a resource home, Junior 

had a "warm and loving relationship with [her] and his extended family 

including aunts, uncles and cousins, as well as his sister." She believed that it 

would be "beneficial" for Junior to be raised with Jane and understood that 

Junior had recently asked about Jane, suggesting there was "love and affection 

in that relationship." 
5

A-3055-20

Cindy further explained that the court previously advised her that she 

would be an acceptable custodial candidate for Junior if she could establish a 

suitable residence. Cindy maintained that she did so and could provide "all the 

necessities of food, clothing and shelter for [Junior]." She also noted her adult 

son lives with her and would be available to assist in meeting Junior's needs. 

Cindy again stated that Junior would benefit from resuming his 

relationship with his biological family, and explicitly denied allegations that she 

failed to cooperate in structured visitation between Junior and Jane. Rather, she 

described that "all such attempts were made at inconvenient times when [she] 

was not available."

Finally, considering the amount of time Junior had been removed from his 

biological family, Cindy requested the court urgently grant her custody 

application. Alternatively, she requested the court consider her as a resource 

parent and place Junior in her home immediately.

The court subsequently scheduled a number of hearings, all conducted 

virtually in light of the COVID-19 pandemic. After each conference, the court 

entered an order which noted that Cindy's application would be considered in 

conjunction and coordination with the Division's FG matter, which the court was 

also handling. 
6

A-3055-20

In a December 4, 2020 order, the court determined Cindy's custody 

application would be resolved after a plenary hearing and ordered all discovery 

to be completed by January 20, 2021. As detailed below, the court ultimately 

conducted that hearing on May 18, 2021. 

On March 16, 2021, Junior's Law Guardian attempted to schedule a 

psychological and bonding evaluation for Cindy, Annie, Junior, and his resource 

parents. Rather than participate in that evaluation, Cindy moved for a protective 

order, in which she sought to bar "any agency review, evaluation, or examination 

of [her] fitness as a potential custodial parent." She specifically requested that 

the court enter such an "order so that [she] does not have [to] submit to an 

evaluation or examination by any expert in this matter but rather have the matter 

proceed to plenary hearing without such examination." 

In her supporting certification, Cindy contended it was "improper for the 

agency to arrange or conduct an examination, evaluation or analysis by any 

expert of [her] as a potential custodial parent as [she] [is] not part of the agency 

case or proceeding." Cindy further noted she currently has custody of Jane and 

believed it is in Junior's "best interests ... that he live with [Cindy] at [her]

residence . . . along with his sibling and that the agency return [her] grandson to 

his biological family."
7

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The court conducted a hearing on April 6, 2021 with respect to Cindy's 

motion and denied her request for a protective order. In an order entered that 

day, the court directed Cindy "to attend the evaluations scheduled by the Law 

Guardian . . . [and] . . . provide confirmation of her attendance to the Law 

Guardian prior to the date . . . [or] a missed appointment fee would be incurred."

Cindy failed to appear at the scheduled appointment. The court 

accordingly held another virtual hearing on April 13, 2021 to address her 

noncompliance and entered an order the next day requiring Cindy to notify "all 

counsel by April 22, 2021 of her intention to appear or not appear for the Law 

Guardian's scheduled psychological and bonding evaluations." Cindy failed to 

comply with the court's April 14th order and never appeared for the scheduled 

evaluations.

As noted, the court conducted a plenary hearing on May 18, 2021 to 

address Cindy's outstanding custody application.

6

 At the plenary hearing, 

Cindy, Annie, Annie's sister, L.S., and Annie's brother, I.J., testified in support 

of Junior's placement with Cindy or another family member. Division 

6

 Annie's brother, I.J., also filed a complaint under the FN docket for custody 

of Junior. The court denied his application at the conclusion of the May 18, 

2021 plenary hearing. I.J. has not appealed that decision. 
8

A-3055-20

caseworker Stephanie Holliday testified in opposition. Junior's Law Guardian 

also opposed Cindy's motion but did not call any witnesses. 

Cindy explained it would be in Junior's best interests to be placed with her 

and raised with Jane. She failed, however, to provide any details or evidence

with respect to her employment or income sources, instead electing to

summarily state she would be able to meet Junior's needs. With respect to 

visitation with Junior, Cindy acknowledged that despite being offered visitation

by both the Division and the resource parents, she had visited with Junior only

one time since his removal two years earlier. 

When the Division attempted to cross-examine Cindy regarding Junior 

and her suitability to care for him, she refused to answer counsel's questions, 

and instead asserted her rights under the Fifth Amendment as follows:

[DIVISION COUNSEL]: I want to be clear, since the 

child was removed you have seen the child one time, is 

that your testimony that you’ve seen [Junior] one time? 

[CINDY]: I plead the Fifth. 

[DIVISION COUNSEL]: Okay. Who’s the father of 

[Junior]?

[CINDY]: I plead the Fifth. 

[DIVISION COUNSEL]: Now, does [Annie] invite 

you to her weekly visitations with [Junior]? 
9

A-3055-20

[CINDY]: I plead the Fifth.

[. . .]

[DIVISION COUNSEL]: . . . [W]hat is your assessment 

of ... the possibilities of [Junior's] negative reaction to 

move from the resource parent and placed --

[CINDY]: I plead the Fifth.

Annie testified that she wanted either Cindy or I.J., to have legal and 

physical custody of Junior. L.S. stated that she too preferred Cindy to care for 

Junior. For his part, I.J. stated that he believed Junior should be with him, or 

Junior's extended family. 

Prior to Holliday's testimony, the Division attempted to submit into 

evidence a redacted evaluation of Junior and Annie conducted by Dr. David

Brandwein. Annie, however, apparently had not had an opportunity to review

the redacted report, and the court accordingly denied the Division's request to 

admit the report into evidence. 

Holliday confirmed that Cindy initially declined to be considered as a 

resource placement for Junior and also refused to engage in the licensing process 

for his placement, a requirement under the New Jersey Resource Family Parent 

Licensing Act, N.J.S.A. 30:4C-27.3 to 27.15. She also stated Junior's resource 
10 A-3055-20

parent regularly communicated with Cindy, and cooperatively engaged with the 

Division to arrange sibling visits between Junior and Jane. 

Holliday also stated that despite the Division's encouragement, Annie had 

not invited Cindy to accompany her on her visits with Junior. She further

explained that around March or April 2021, Cindy notified the Division that she 

would no longer communicate with the Division or Junior's resource parent, 

upon the advice of her lawyer. Holliday also informed the court that Cindy 

refused to provide any "collaterals" regarding Jane, which she described as 

documents that address, among other issues, a child's educational and medical

needs. 

Junior's Law Guardian did not call any witnesses, but expressed his 

opposition to Cindy's custody application, noting Junior was happy in his 

resource home and wished to be adopted. The Law Guardian also stressed 

Cindy's complete disregard for court-ordered evaluations, and her failure to 

provide any corroborating evidence supporting her application, such as her

finances, residence, and plans to mitigate any potential harm to Junior if he is 

removed from the care of his resource parents. 
11 A-3055-20

At the conclusion of the hearing, the court considered the factors 

enumerated in N.J.S.A. 9:2-4

7

and issued an oral decision that denied Cindy's 

custody application and dismissed her FD complaint. The court stressed it had 

significant concerns regarding Cindy's and I.J.'s initial failure to make 

themselves available as a resource placement for Junior, and Cindy's later 

refusal to engage in scheduled evaluations. 

With respect to the N.J.S.A. 9:2-4 factors, the court weighed Cindy's 

ability to agree, communicate and cooperate in matters relating to Junior, and 

found that Cindy's failure to engage in any expert evaluations, especially those 

requested by Junior's Law Guardian, evidenced her unwillingness to 

communicate and cooperate in matters about Junior. The court stated that it did 

7

 The fourteen factors listed in N.J.S.A. 9:2-4 are: (1) the parents' ability to 

agree, communicate and cooperate in matters relating to the child; (2) the 

parents' willingness to accept custody and any history of unwillingness to allow 

parenting time not based on substantiated abuse; (3) the interaction and 

relationship of the child with its parents and siblings; (4) the history of domestic 

violence, if any; (5) the safety of the child . . . ; (6) the preference of the child 

when of sufficient age and capacity to reason so as to form an intelligent 

decision; (7) the needs of the child; (8) the stability of the home environment 

offered; (9) the quality and continuity of the child's education; (10) the fitness 

of the parents; (11) the geographical proximity of the parents' homes; (12) the 

extent and quality of the time spent with the child prior to or subsequent to the 

separation; (13) the parents' employment responsibilities; and (14) the age and 

number of the children.
12 A-3055-20

not weigh factor two against Cindy despite her decision to visit Junior only once 

since his removal in light of the difficulties attendant to visitation. The court, 

however, weighed factor three against Cindy and explained that although sibling 

visitation was encouraged, it was suspended for approximately two or three 

months by Cindy. The court, therefore, noted that such behavior "show[ed] a 

lack of a desire to interact with [Junior's] sibling[]." 

The court weighed factors seven through nine and twelve through thirteen 

against Cindy as she failed to introduce sufficient testimony or evidence outside 

of "basic statements" detailing how Junior's needs would be met, what his home 

environment would be like, or even where he would attend kindergarten if 

placed in her care. She also failed to adequately describe the extent and quality 

of the time spent with the Junior prior to or subsequent to his removal, or her 

employment responsibilities. The court also considered factors four, five, six, 

ten, eleven, and fourteen but determined they did not affect the court's best 

interests analysis. 

In denying Cindy's application the court reasoned:

[The court] . . . find[s] that [Cindy] did not carry [her] 

burden of proof as to whether [she] should have custody 

of [Junior]. Again, [the court] reviewed the factors set 

forth in N.J.S.A. 9:2-4, and [it] did not find that there’s 

sufficient evidence that the [c]ourt disrupt what is 

happening, especially in the context of this case where 
13 A-3055-20

there’s an FD case and where’s there [is] [c]ourt 

oversight over the placement decisions made by [the 

Division]. 

The court stated, however, that "the game [was] not over" as the FG 

litigation was still pending and Cindy could still consent to an evaluation to be 

considered as a placement for Junior.8 The court entered a conforming order 

memorializing its custody determination and this appeal followed. 

II.

Before us, Cindy contends that the court abused its discretion in denying 

her custody application and when applying the N.J.S.A. 9:2-4 factors, 

particularly in light of the fact that Jane has been in her custody for nearly two 

years without incident, and Junior's mother consented to her custody of him. 

She also argues that the proceedings were fundamentally flawed because the 

court took an excessive amount of time to adjudicate the matter due to delays 

related to COVID-19, resulting in Junior developing a bond with his resource 

parents. 

8 We take judicial notice, under N.J.R.E. 201(b)(4), that the court terminated 

Annie and John's parental rights as to Junior in a June 27, 2022 opinion and 

order. See N.J. Div. of Child Prot. & Permanency v. A.S., No. FG-11-37-20 

(Ch. Div. June 27, 2022) (slip op. at 114). 
14 A-3055-20

In addition, Cindy contends the court erred in failing to develop a plan 

that would allow Junior to be reunited with his biological family. Relying on

S.M. v. A.W., 281 N.J. Super. 63, 71 (App. Div. 1995), and L. v. G., 203 N.J. 

Super. 385, 395 (Ch. Div. 1985), Cindy asserts that New Jersey has a strong 

policy goal of establishing and nurturing sibling relationships. Similarly, Cindy 

relies on N.J.S.A. 9:6B-4(b) and (d) for the proposition that a child placed 

outside his home has the right "[t]o the best efforts of the applicable department 

to place the child in the same setting with the child's sibling if the sibling is also 

being placed outside his home." In failing to consider properly these cases and 

statutory authorities, Cindy argues the court failed to weigh properly the sibling 

relationship when reaching its custody determination. We disagree with all of 

these arguments. 

III.

We accord "great deference to discretionary decisions of Family Part 

judges[,]" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) 

(citations omitted), in recognition of the "family courts' special jurisdiction and 

expertise in family matters . . . ." N.J. Div. of Youth & Fam. Servs. v. M.C. III, 

201 N.J. 328, 343 (2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). 

We are bound by the trial court's factual findings so long as they are supported 
15 A-3055-20

by sufficient credible evidence. N.J. Div. of Youth & Fam. Servs. v. M.M., 189 

N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 

(App. Div. 1993)). However, "[a] trial court's interpretation of the law and the 

legal consequences that flow from established facts are not entitled to any 

special deference." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014) (quoting 

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 

(1995)).

Generally, when a third party seeks custody against a legal parent, a twostep analysis is conducted. K.A.F v. D.L.M., 437 N.J. Super. 123, 134 (App. 

Div. 2014). First, the court must determine "whether the presumption in favor 

of the legal parent is overcome by either a showing of 'unfitness' or 'exceptional 

circumstances.'" Ibid. (quoting Watkins v. Nelson, 163 N.J. 235, 247, 254 

(2000)). "It is only after that presumption has been rebutted that the court 

proceeds to the determination whether awarding custody or other relief to the 

third party would promote the best interests of the child." Ibid.

"In custody cases, it is well settled that the court's primary consideration 

is the best interests of the children." Hand v. Hand, 391 N.J. Super. 102, 105 

(App. Div. 2007) (citing Kinsella v. Kinsella, 150 N.J. 276, 317 (1997)). In 

making the determination, a "court must focus on the 'safety, happiness, 
16 A-3055-20

physical, mental and moral welfare' of the children." Ibid. (quoting Fantony v. 

Fantony, 21 N.J. 525, 536 (1956)). "In issues of custody and visitation '[t]he 

question is always what is in the best interests of the children, no matter what 

the parties have agreed to.'" Ibid. (quoting P.T. v. M.S., 325 N.J. Super. 193, 

215 (App. Div. 1999)). When determining what custodial arrangement will best 

meet the child's best interests, the court is required to examine, at a minimum, 

the fourteen factors set out in N.J.S.A. 9:2-4. D.A. v. R.C., 438 N.J. Super. 431, 

450 (App. Div. 2014) ("determining what custodial arrangement is in the best 

interest of a child requires the Family Part judge to apply the statutory factors 

outlined in N.J.S.A. 9:2-4 . . . and reach a conclusion that is supported by the 

material factual record."). 

Further, in evaluating the best interests of the child, a "sibling relationship 

is another factor that has to be weighed in the custody mix." S.M., 281 N.J. 

Super. at 71. On this point, our Supreme Court has stated, "[c]ase law and the 

literature make clear that we cannot underestimate the value of nurturing and 

sustaining sibling relationships." N.J. Div. of Youth & Fam. Servs. v. S.S., 187 

N.J. 556, 561 (2006). Recognition of sibling rights, however, is not unfettered 

as the rights of children to maintain relationships with their siblings is 
17 A-3055-20

conditioned on the best interests determination. In re C.R., 364 N.J. Super. 263, 

278 (App. Div. 2003).9

Applying these principles, we discern no abuse of discretion in the court's 

decision denying Cindy's request for custody of Junior. Here, Cindy, as a third 

party, sought custody under an FN application, during a period the Division

maintained legal custody of Junior and was intimately involved in his care and 

supervision. The parties never disputed before the court, and have not disputed 

before us, that Junior's parents were unable to care for him at the time of his 

removal or the plenary hearing. Nor have they challenged the court's finding as 

stated in an order issued after a testimonial summary proceeding in the FN 

litigation that, "the family is in need of the Division's services for the best 

interest of the children due to continued concerns and instability." 

We also have no reason to disturb the court's findings under N.J.S.A. 9:2-

4 as they are supported by sufficient, credible evidence in the record. As the 

court determined, Cindy initially declined to be a placement for Junior, and only 

9

 A leading commentator contends, however, that "[d]espite the holding in S.M. 

v. A.W., a private third-party custody action is not appropriate today if there is 

an order granting custody, care or supervision of the child to DCCP. Rather all 

custody determinations in that case are made by DCPP with judicial oversight." 

Robert A. Fall & Curtis J. Romanowski, Child Custody, Protection & Support § 

22:4 (2022). 
18 A-3055-20

visited Junior once during the two years since he was placed with his resource 

parents. Cindy also refused to participate in scheduled and court ordered 

evaluations by the Division and Junior's Law Guardian. She further declined to 

partake in any requirements necessary to become a resource parent for Junior, 

such as a home assessment. Finally, she failed to provide the court with detailed 

information necessary to confirm she had the resources and capabilities to care 

for Junior. 

As to Junior's placement apart from Jane, we acknowledge the general 

preference of the courts to keep siblings together when it is able to do so, S.M., 

281 N.J. Super. at 71; N.J.S.A. 9:6B-4(b) and (d), but any such placement must 

ultimately be conditioned on Junior's best interests. We are satisfied that the 

court properly considered the proofs before it and determined that Cindy failed 

to establish it was in Junior's best interests to transfer custody to her from the 

Division notwithstanding that she had custody of Jane. 

We also reject Cindy's reliance on S.M. v. A.W. as it is factually 

distinguishable. In that case, we reversed a trial court's order granting custody 

to the resource parents over a maternal grandmother and in doing so held, "[t]he 

proper role of foster care and the paramount interest to achieve family 

reunification whenever possible calls for a presumption of custody in favor of a 
19 A-3055-20

fit grandmother." S.M., 281 N.J. Super. at 72. There, however, although the 

grandmother initially consented to Division placement of her granddaughter, she

regularly visited with the child and her siblings during the period of removal. 

Id. at 66. Further, when the grandmother ultimately applied for custody, she 

willingly participated in several assessments to establish that her home was 

acceptable, as well as diagnostic and family services evaluations. Id. at 66, 67. 

Therefore, the court found that "under the circumstances presented" the 

grandmother "[stood] in the shoes of her deceased daughter in relation to [the 

child] and should be accorded the status of a natural parent in seeking custody." 

Id. at 72. 

Unlike in S.M., as noted, Cindy visited Junior only once during his period 

of removal. Moreover, because of her refusal to participate in the necessary 

Division assessments or evaluations, provide supporting collaterals, or respond 

to the Division's reasonable inquiries during the plenary hearing, Cindy failed 

to establish it would be in Junior's best interests for custody to be transferred to 

her. 

We also reject Cindy's argument that the court improperly delayed 

resolution of her custody application thereby permitting Junior to develop a 

bond with his resource parents, which would not have occurred had the court 
20 A-3055-20

promptly resolved the custody application in her favor. First, the court:

expressly did not base its decision, in whole or in part, on any bond that may 

have developed between Junior and his resource parents; specifically denied the 

Division's request to admit the report of Dr. Brandwein; and expressly declined 

to consider the Law Guardian's unsupported assertions regarding Junior's 

wishes. Second, Cindy did not dispute that she visited with Junior only once 

after his removal and made no attempt to visit him with Jane.

To the extent we have not specifically addressed any of plaintiff's 

arguments it is because we have concluded they are without sufficient merit to 

warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.