RECORD IMPOUNDED 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0485-23 

NEW JERSEY DIVISION OF 

CHILD PROTECTION AND

PERMANENCY, 

 Plaintiff-Respondent, 

v.

A.N.B., 

 Defendant, 

and 

H.D.W., 

 Defendant-Appellant. 

_________________________

IN THE MATTER OF THE 

GUARDIANSHIP OF 

M.D.W. and A.W., minors. 

_________________________

Submitted May 1, 2024 – Decided May 9, 2024 

Before Judges Firko and Vanek. 

NOT FOR PUBLICATION WITHOUT THE 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-0485-23

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Monmouth County, 

Docket No. FG-13-0051-23.

Jennifer Nicole Sellitti, Public Defender, attorney for 

appellant (Bruce Pozu Lee, Designated Counsel, on the 

briefs). 

Matthew J. Platkin, Attorney General, attorney for 

respondent (Sookie Bae-Park, Assistant Attorney 

General, of counsel; Julie Beth Colonna, Deputy 

Attorney General, on the brief). 

Jennifer Nicole Sellitti, Public Defender, Law 

Guardian, attorney for minors (Meredith Alexis 

Pollock, Deputy Public Defender, of counsel; Noel 

Christian Devlin, Assistant Deputy Public Defender, of 

counsel and on the brief). 

PER CURIAM 

 Defendant H.D.W. (Harry)1 appeals from the September 26, 2023 

judgment of guardianship terminating his parental rights to his son, M.D.W. 

(Michael), born in March 2021, and his daughter, A.W. (Ayanna), born in June 

2022. After a trial, Judge Teresa Ann Kondrup-Coyle issued a sixty-eight-page 

written opinion finding that plaintiff Division of Child Protection and 

Permanency (Division) satisfied the four prongs of the best-interests-of-the1

 We identify defendant and other parties by initials and pseudonyms to protect 

confidential information in the record. R. 1:38-3(d)(12). 
3 A-0485-23

child test set forth in N.J.S.A. 30:4C-15.1(a), justifying termination of Harry's 

parental rights. We affirm. 

I.

Factual Background

 Judge Kondrup-Coyle's opinion reviewed the evidence in great detail. A 

summary of her findings of fact will suffice here. Defendant A.N.B. (Astrid) is 

Michael and Ayanna's mother. Ayanna passed away after the guardianship trial, 

and her appeal was withdrawn. The Division first became involved with Harry 

and Astrid in 2016 before Ayanna was born. Harry has been diagnosed with 

autism and schizophrenia. Astrid suffered brain damage from a loss of oxygen 

at birth and was diagnosed with bipolar disorder. Both defendants received 

services from the Division of Developmental Disabilities (DDD) and Social 

Security Disability Insurance assistance. The Division placed defendants' older 

daughter, Abbie, who is not involved in this appeal, with Sam and Ophelia, the 

paternal grandparents, at birth. Sam and Ophelia later entered into a Kinship 

Legal Guardian (KLG) arrangement for Abbie. 

 Given both defendants' cognitive limitations, in December 2020, the 

Division asked the hospital to notify it when Astrid gave birth to Michael. The 

Division received a referral the day Michael was born and executed a Dodd 
4 A-0485-23

removal.2 Michael was placed with Sam and Ophelia. Division caseworker 

Jennifer Healy spoke to Astrid at the hospital and had concerns about her ability 

to care for Michael. Astrid testified positive for fentanyl when Michael was 

born and was experiencing mental health issues. 

 Healy met with Harry at the couple's apartment and observed it was 

"filthy," "bug infested," in "complete disarray and was extremely cluttered" with 

shoes at the door, toys, huge television sets, and gerbil cages and items 

everywhere. There were cockroaches and trash throughout the kitchen and 

unsanitary conditions in the apartment making it unsafe for a child. Harry and 

Astrid had not previously permitted any Division caseworkers to go into the 

apartment. 

 Sam and Ophelia did not want to enter a KLG arrangement with Michael 

because Harry and Astrid caused them "distress and ongoing aggravation" 

regarding the KLG-imposed visitation with Abbie. Harry advised the Division 

2

 "A 'Dodd removal' refers to the emergency removal of a child 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. The Dodd Act was authored by former Senate President Frank J. 

'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 

593, 609 n.2 (App. Div. 2010). 
5 A-0485-23

that he opposed Sam and Ophelia obtaining custody of Michael. No other 

relatives were offered for assessment. 

 During the protective services litigation that followed, the judge continued 

the Division's custody of Michael and ordered that Harry comply with services, 

including a psychological evaluation. The Division provided Harry with bus 

passes to travel to visits with Michael and to access services. Sam and Ophelia 

had an "open door policy" and permitted liberal, supervised visitation at their 

home. However, Harry complained about his relationship with them, and his 

visitation dwindled over time. 

Division caseworker Bryant Moore arranged to transport Harry to a visit 

and to his psychological evaluation, but he did not comply. Moore observed 

Harry speaking "very rapidly, stumbling over words, and going off topic" and 

saying he felt "bullied by . . . everyone." The Division also provided Harry with 

housing resources, which he declined.

 In July 2021, Harry was evaluated by Todd Traina, Psy.D. Harry denied 

having a learning disability, autism, or depression. Dr. Traina administered 

intelligence testing to Harry, the Wechsler Abbreviated Scale of Intelligence and 

the Million Clinical Multiaxial Inventory, which showed he was intellectually 

impaired and "could impede his capacity to independently parent" or learn new 
6 A-0485-23

parenting skills. Based on Dr. Traina's recommendation, Harry was referred to 

Comfort Care for individual counseling, and the Division arranged for 

therapeutic visits through the YMCA. Later, the YMCA terminated Harry for 

noncompliance with visits. 

 In June 2022, the judge approved the Division's permanency plan of 

termination of Harry's parental rights followed by adoption. That month, Astrid 

gave birth to Ayanna. Harry was unaware Astrid was pregnant. The Division 

emergently removed Ayanna and initially placed her with a non-relative 

resource parent because Harry's paternity was questioned. After Harry 

submitted to a paternity test and he was confirmed to be Ayanna's biological 

father, she was transitioned to Sam and Ophelia's home, joining her siblings 

Michael and Abbie. Harry objected, but the Division explored and ruled out 

other relatives he suggested. 

 In July 2022, the Division filed for guardianship of Michael, and amended 

its complaint to include guardianship of Ayanna. In October 2022, following a 

visit at the Division's office with Ayanna, Astrid violently shook Ayanna in her 

car seat in the Division's vehicle because she was crying. When the caseworker 

tried to stop Astrid from getting in the car, she scratched him and screamed 

racial slurs at him. Harry began yelling at the caseworker and threatened to kill 
7 A-0485-23

him. The Division temporarily suspended visits due to Harry's and Astrid's 

behavior. Thereafter, the Division visited Harry's apartment with police 

assistance. 

 Harry was admitted to the hospital for suicidal ideations he made on 

Facebook. After being discharged, he was referred for outpatient mental health 

treatment. He refused to provide his therapist's name or sign a release form for 

the Division. When he finally agreed to sign the release form, the records 

obtained by the Division indicated that Harry inconsistently attended sessions 

and was not regularly taking his psychotropic medication. In February 2023, 

Ayanna was placed with Sam and Ophelia, who refused to enter into a KLG 

arrangement due to issues with Harry and Astrid, coupled with their intention to 

move to Florida. 

 In April 2023, a caseworker Jillian Lepore transported Harry to a bonding 

evaluation conducted by Karen Wells, Psy.D. Dr. Wells observed Harry had 

difficulty engaging with Michael and Ayanna at the same time. For example, 

Harry did not notice that Ayanna put a crayon in her mouth, and he struggled 

changing both children's diapers. The next month, Harry reported taking 

psychotropic medication and seeing a psychiatrist. 
8 A-0485-23

The Guardianship Trial 

 The judge held a three-day trial. Harry only attended briefly the first day. 

The Division presented caseworkers—Moore, Healy, and Lepore—and Sam. In 

addition, the Division presented expert testimony from Dr. Wells. The Law 

Guardian agreed with the Division's plan. Harry did not present any witnesses. 

 Moore and Healy testified as stated above. Lepore testified that at the 

time of trial, Harry was engaged in therapy and medication management, but he

could not provide his therapist's name and did not sign a release form to 

authorize Lepore to speak to his therapist about his progress. Lepore testified 

about her observations of Harry during Dr. Wells's bonding evaluation when he 

struggled to supervise the children. Lepore stated that had Harry engaged in 

therapeutic supervised visitation, he would have received "one-to-one guidance, 

that helping hand, teaching [him]" to minimize safety risks during diaper 

changes and addressing the need for supervision. 

 Dr. Wells testified as an expert in clinical and forensic psychology as it 

relates to bonding and parental fitness. Although competent to participate at 

trial, Dr. Wells found Harry "intellectually deficient." She opined that he had 

"moderate cognitive limitations, particularly in the area of reasoning, logical 

thinking and executive functioning," which were "chronic" and "lifelong." Dr. 
9 A-0485-23

Wells diagnosed Harry with schizoaffective disorder and stated he was noncompliant with taking medications. Based on Harry's prior evaluations by Dr. 

Traina and others, Dr. Wells concluded he needed "guidance and direction to 

assist him in his day-to-day living." Dr. Wells noted that Harry did not follow 

through with services implemented for him "across the board," which was 

"reflective of a need for a higher level of care." 

 Dr. Wells testified that Harry needs assistance managing money and 

maintaining appointments. She explained that Harry's communication skills 

were also impacted, he often misinterpreted a situation, and felt misunderstood. 

Dr. Wells opined Harry had "no awareness" that Sam and Ophelia were 

successfully caring for his children, but he could not. Regardless of whether he 

engaged in therapy, Dr. Wells concluded that Harry would not be "able to 

assume a parental role" because he could not manage a child's life. Dr. Wells 

opined Harry would be unable to safely parent in the future, and there were no 

services available to improve his condition. 

 On the issue of permanency, Dr. Wells concluded that Sam and Ophelia 

understood their roles in serving as the children's primary parental figures in 

light of Harry's cognitive limitations. Dr. Wells added that Michael and Ayanna 

deserved permanency with Sam and Ophelia, who have demonstrated their 
10 A-0485-23

"ability to provide continuity of care" with their sister Abbie and "to have liberal 

contact" with Harry. 

Dr. Wells "strongly" considered KLG because Sam and Ophelia had an 

"open door policy" with visitation. But Dr. Wells opined that KLG was not in 

Michael and Ayanna's best interests because of Harry's noncompliance with 

services, his failure to visit the children, and the difficulties Sam and Ophelia 

experienced regarding Abbie's KLG arrangement. Dr. Wells concluded that 

adoption would provide the children with the stability they need. 

 Sam testified that the Division had advised him and Ophelia about the 

differences between KLG and adoption. Sam expressed frustration with the 

KLG arrangement with Abbie and felt Harry and Astrid "used KLG to bully us." 

Sam stated Harry and Astrid were unappreciative of his and Ophelia's care of 

the children and their efforts to facilitate visitation. Going forward, Sam 

testified he could no longer tolerate numerous "interruptions with the parents," 

welfare checks, and allegations he and Ophelia were not properly caring for the 

children, which would continue under a KLG arrangement. Sam stated that 

adoption would provide Michael and Ayanna with "a stable home." 
11 A-0485-23

The Judge's Decision 

 The judge issued detailed findings with respect to each of the statutory 

prongs in N.J.S.A. 30:4C-15.1(a). The judge found the Division's witnesses 

were "credible," had an "independent recollection of the case," and that: (1) 

Harry's parental relationship with Michael and Ayanna endanger[ed] the 

children's safety, health, or development because of his mental illness, cognitive 

limitations, and inability to meet even the children's most basic needs; (2) 

Harry's behavioral issues, refusal to comply with services, failure to consistently 

visit the children without an ability to appraise his own situation, and 

acknowledge his limitations heightens the risk of harm were the children to be 

in his care; (3) Harry is unwilling or unable to address the risk of harm his 

parental relationship presents to Michael and Ayanna, despite the reasonable 

efforts of the Division to offer Harry services related to the causes of that risk 

of harm; (4) a delay in permanent placement will add to the harm the children 

face; and (5) termination of Harry's parental rights will not do more harm than 

good.

The judge emphasized that multiple service providers noted "consistent 

and significant concerns regarding [Harry's] mental capacity and ability to meet 

even the most basic needs of a child." The judge found the Division proved that 
12 A-0485-23

Harry was "unwilling and unable to remedy the unaddressed and significant 

mental and cognitive limitations that caused each of [the] children to be 

removed." 

 This appeal followed. Harry does not challenge the judge's finding that 

the children's safety, health, or development have been or will continue to be 

endangered by the parental relationship under prong one; or that he failed to 

mitigate harm under prong two; or the adequacy of services under part one of 

prong three; or that terminating his parental rights would not do more harm than 

good under prong four. Harry raises two discrete issues on appeal: 

(1) the judge's determination that the paternal 

grandparent, Sam, unequivocally rejected KLG is no 

longer adequately supported by the record because 

his concerns primarily involved Astrid, who has 

passed away; and 

(2) the judge erred in admitting Dr. Traina's findings

as to what would constitute reasonable services into 

evidence without his testimony, thus admitting 

inadmissible hearsay, violating Harry's right to 

confront Dr. Traina, and prejudicing Harry's ability 

to challenge whether the Division's efforts under 

prong three were reasonable. 

The Law Guardian seeks affirmance. 
13 A-0485-23

II. 

With respect to Harry's appeal, our scope of review is limited. N.J. Div. 

of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007). We will uphold a 

trial judge's factfindings if they are "supported by adequate, substantial, and 

credible evidence." N.J. Div. of Youth & Fam. Servs. v. R.G., 217 N.J. 527, 

552 (2014). "We accord deference to factfindings of the family court because it 

has the superior ability to gauge the credibility of the witnesses who testify 

before it and because it possesses special expertise in matters related to the 

family." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 448 (2012); 

see Cesare v. Cesare, 154 N.J. 394, 413 (1998). 

"Only when the trial court's conclusions are so 'clearly mistaken' or 'wide 

of the mark' should an appellate court intervene and make its own findings to 

ensure that there is not a denial of justice." N.J. Div. of Youth & Fam. Servs. v. 

E.P., 196 N.J. 88, 104 (2008) (quoting G.L., 191 N.J. at 605). We also accord 

deference to the judge's credibility determinations "based upon his or her 

opportunity to see and hear the witnesses." N.J. Div. of Youth & Fam. Servs. v. 

R.L., 388 N.J. Super. 81, 88 (App. Div. 2006). No deference is given to the 

court's "interpretation of the law" which is reviewed de novo. D.W. v. R.W., 

212 N.J. 232, 245-46 (2012). 
14 A-0485-23

When terminating parental rights, the court focuses on the "best interests 

of the child standard" and may grant a petition when the four prongs set forth in 

N.J.S.A. 30:4C-15.1(a) are established by clear and convincing evidence. In re 

Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). "The four criteria 

enumerated in the best interests standard are not discrete and separate; they 

relate to and overlap with one another to provide a comprehensive standard that 

identifies a child's best interests." Id. at 348. 

N.J.S.A. 30:4C-15.1(a) requires the Division to prove: 

(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. 

Such harm may include evidence that separating the 

child from his resource family parents would cause 

serious and enduring emotional or psychological harm 

to the child; 

(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. 
15 A-0485-23

The considerations involved are especially "fact sensitive and require 

particularized evidence" addressing the specific circumstances present in each 

case. K.H.O., 161 N.J. at 348. 

We first address Harry's argument that Astrid's passing constituted a 

substantial post-judgment change in circumstances. Harry asserts that Sam and 

Ophelia rejected KLG for Michael and Ayanna and seek adoption out of their 

concerns for Astrid, not him, as a parent. Harry now seeks a remand to 

determine whether Sam and Ophelia still favor adoption over KLG in light of 

Astrid's passing and whether termination of Harry's parental rights is still in 

Michael's and Ayanna's best interests. 

In support of his argument, Harry relies on our decision in New Jersey 

Division of Youth & Family Services v. T.S., 417 N.J. Super. 228 (App. Div. 

2010), where the mother's parental rights were terminated. Post-trial, the mother 

continued to alleviate the harms that led to the child's removal and supported 

her ability to achieve reunification. Id. at 246-47. Further, safety concerns arose 

necessitating the termination of the child's anticipated adoption placement. Ibid. 

We remanded to the Family Part for an additional review of "these additional 

facts, . . . not present at the time of trial, [but which] must nevertheless be 
16 A-0485-23

assessed before a conclusion can be drawn that termination will do more harm 

than good." Id. at 249. 

We concluded in T.S. that "[i]t is unusual to have such a culmination of 

events, which when taken together, call into question whether the possible 

detriment posed by keeping the parent-child relationship intact is outweighed by 

the potential benefits of terminating [the mother's] parental rights." Ibid. Unlike 

T.S. however, there has been no change in Harry's ability or willingness to be 

"up to the task" of parenting. 

Harry has never provided a safe and stable home for Michael and Ayanna. 

Moreover, Harry has never had custody of these children. Instead, the unrefuted 

evidence showed that Harry "require[s] extensive and lifelong support to 

provide for [his] own needs" and "[n]o service, support, intervention, or program 

could alter [his] limitations" and render him a capable parent. Harry's attempt 

to draw parallels between T.S. with the facts at hand warranting a remand is 

unsupported by the evidence. There are no current new facts presented by Harry 

to warrant a remand to reexamine the record. T.S. is simply not on point here. 

We are satisfied that Astrid's passing does not warrant a reevaluation of 

the third prong. The caseworker testified that Sam and Ophelia are "very 

adamant" about adopting Michael and Ayanna instead of entering a KLG 
17 A-0485-23

arrangement as they did with Abbie. Sam unequivocally testified that he and 

Ophelia want to adopt Michael and Ayanna and not pursue KLG. Sam testified 

that Astrid and Harry "use[d] KLG to bully [him and Ophelia]. And that's what 

they've done in the past. And I don't want to be bullied anymore. It just doesn't 

work for us." Sam elaborated on his reason to adopt: 

Because [Michael and Ayanna] need to be loved and 

they need a stable home. They need to recognize who 

their family is . . . . [T]hey're much better off with us. 

We're more . . . established . . . . [W]e have five other 

children. We have a total of [thirteen] 

grand[children]—and that's including [Abbie]. The 

parents are—from my opinion, just not up . . . for the 

task. 

 Contrary to Harry's assertion, Sam (and Ophelia) did not limit their 

concerns to Astrid only but clearly expressed their preference for adoption over 

KLG because of reprehensible behavior exhibited by both Harry and Astrid. 

Therefore, Astrid's passing does not constitute a changed circumstance. 

Moreover, Harry has a history of becoming agitated and making threats 

concerning the use of a gun. Sam testified that he had to set limits with visitation 

because Harry and Astrid "both lash out," and Harry would show up very late in 

the evening for visitation. We discern no basis for a remand to reevaluate prong 

three. 
18 A-0485-23

III. 

 We next address Harry's final contention that the judge's reliance on 

inadmissible hearsay by admitting Dr. Traina's evaluation without having him 

testify was prejudicial and constituted reversible plain error. At trial, the 

Division proffered Dr. Traina's evaluation only as to his recommendation on 

reasonable services for Harry. Over objection by Harry's counsel, the judge 

ruled the evaluation was admissible for the limited purpose of establishing what 

recommendations Dr. Traina made in order to show the referrals the Division 

made and services it offered relative to prong three. The judge elaborated that 

Dr. Traina's recommendations would be considered to show that the Division 

provided services, not for the truth asserted. 

We "apply a deferential standard of review to the trial court's evidentiary 

rulings." State v. Hyman, 451 N.J. Super. 429, 441 (App. Div. 2017). "The 

necessity for, or propriety of, the admission of expert testimony, and the 

competence of such testimony, are judgments within the discretion of the trial 

court." State v. Zola, 112 N.J. 384, 414 (1988). "[T]he admission or exclusion 

of evidence is within the discretion of the trial court." State v. Torres, 183 N.J. 

554, 567 (2005). 
19 A-0485-23

Hearsay is an out-of-court statement offered for the truth of the matter it 

asserts. State v. Gore, 205 N.J. 363, 375 (2011) ("[o]ur hearsay rules of evidence 

clearly provide that 'a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the 

matter asserted' is inadmissible unless encompassed by one of the stated 

exceptions to the rule precluding hearsay testimony" (citation omitted)). 

Hearsay is not admissible under N.J.R.E. 802, subject to exceptions as outlined 

in N.J.R.E. 803-804, and when the Confrontation Clause is implicated, as 

discussed in Crawford v. Washington, 541 U.S. 36 (2004). 

"However, hearsay is not admissible substantively as establishing the truth 

of the statement." State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 

2002), aff'd and remanded, 177 N.J. 229 (2003). In Vandeweaghe, we found 

prejudicial an expert witness' testimony that consisted of extensive hearsay 

regarding the defendant's life, habits, and history. 351 N.J. Super. at 478-79, 

483-84. The expert's "recitation of hearsay" denied the defendant his 

confrontation rights. Id. at 483. 

Unlike in Vandeweaghe, Judge Kondrup-Coyle did not consider Dr. 

Traina's psychological findings for the truth of the matter asserted and did not 

recite hearsay to terminate Harry's parental rights. Rather, the judge only 
20 A-0485-23

considered the evaluation for the limited purpose the Division made reasonable 

efforts to provide services to Harry under prong three. Because the judge did 

not rely on actual hearsay, the judge properly admitted Dr. Traina's evaluation 

and there was no prejudice. 

Further, Dr. Traina's evaluation was admissible under Rule 5:12-4(d), 

which states: "The Division . . . shall be permitted to submit into evidence, 

pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or 

professional consultants. Conclusions drawn from the facts stated therein shall 

be treated as prima facie evidence, subject to rebuttal." 

Dr. Traina qualifies as a professional consultant and his evaluation was 

admissible under Rule 5:12-4(d). In his reply brief, Harry avers that even if 

Rule 5:12-4(d) is applicable, Dr. Traina's evaluation should still be barred 

because the evaluation is not trustworthy. Harry claims the evaluation is not 

trustworthy because Dr. Traina concluded that Harry has cognitive limitations, 

with an IQ of 60, but Harry was deprived of an opportunity to counter whether 

any of his medications and mental health disorders artificially lowered his IQ. 

However, as stated, Dr. Traina's opinion and diagnoses were not 

considered by the judge and not admitted into evidence. Moreover, counsel did 
21 A-0485-23

not raise an objection based on Confrontation Clause grounds, and therefore 

waived the right to make that claim on appeal. 

The right to confrontation may be waived for failure to object to the 

offending evidence. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313 n.3 

(2009); accord State v. Williams, 219 N.J. 89, 98 (2014). The defendant must 

raise his or her Confrontation Clause objections. Melendez-Diaz, 557 U.S. at 

327; accord Williams, 219 N.J. at 99. Here, in short, Harry failed to raise or 

preserve his Confrontation Clause claim. That claim is waived. 

We therefore affirm the September 26, 2023 judgment of guardianship 

substantially for the reasons stated in Judge Kondrup-Coyle's comprehensive 

opinion. Harry's additional arguments are without sufficient merit to warrant 

further discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.