NOT FOR PUBLICATION WITHOUT THE 

PRIOR APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4754-16T4

I'ASIA MORELAND, Individually and

as the Administratrix of the Estate

of I'MAYA MORELAND, I'ASIA MORELAND,

Guardian Ad Litem on behalf of 

I'ZHIR MORELAND, and VALERIE BENNING,

Plaintiffs-Appellants,

v.

WILLIAM PARKS, RONALD HUBSCHER, JR.,

ALBERT DINATALE, BENITO BELLO, CITY OF

TRENTON, and COUNTY OF MERCER, 

Defendants-Respondents,

and 

SOVEREIGN BANK ARENA, n/k/a SUN BANK

ARENA, MERCER COUNTY IMPROVEMENT 

AUTHORITY, STATE OF NEW JERSEY,

and GLOBAL SPECTRUM,

Defendants.

_______________________________________

Argued January 17, 2018 - Decided

Before Judge Fuentes, Manahan, and Suter.

On appeal from Superior Court of New Jersey, 

Law Division, Mercer County, Docket No. L0227-11.

Robin Kay Lord argued the cause for appellants 

(Law Offices of Robin Kay Lord, LLC and 

Kardos, Rickles, Hand & Bidlingmaier, 

August 17, 2018

APPROVED FOR PUBLICATION

August 17, 2018

APPELLATE DIVISION
2 A-4754-16T4

attorneys; Robin Kay Lord and Clifford D. 

Bidlingmaier, III, on the brief).

Elizabeth C. Chierici argued the cause for 

respondent William Parks (Chierici, Chierici 

& Smith, attorneys; Donald R. Chierici, Jr., 

on the brief).

William J. O'Kane, Jr. argued the cause for 

respondent Ronald Hubscher (Archer & Greiner, 

P.C., attorneys; Frank D. Allen, William J. 

O'Kane, Jr., and Suzanne K. Collins, on the 

brief).

John Morelli argued the cause for respondent

City of Trenton, Albert DiNatale and Benito 

Bello.

Lillian L. Nazzaro argued the cause for 

respondent County of Mercer (Arthur R. Sypek, 

Jr. Mercer County Counsel, attorney; Lillian 

L. Nazzaro, Assistant County Counsel, on the 

brief).

Jennifer L. Hamilton argued the cause for 

amicus curiae Garden State Equality, Inc.

(Hamilton Law, attorneys; Jennifer L. 

Hamilton, on the brief).

Thomas H. Prol argued the cause for amicus 

curiae New Jersey State Bar Association

(Robert B. Hille, President, New Jersey State 

Bar Association, attorney; Robert B. Hille, 

of counsel and on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

On January 30, 2009, Valerie Benning and I'Asia Moreland were

a same-sex couple who lived together with Moreland's two biological 

children, I'Zhir, who was nearly five years old, and his younger 
3 A-4754-16T4

sister, two-year-old I'Maya. Benning's godson, Armonti Martinez, 

also lived with the couple at the time. On that date, these two 

adults and three children were waiting to cross a street to attend 

the "Disney on Ice" show at the Sun Bank Arts Center in Trenton,

now known as CURE Insurance Arena. While Benning and I'Maya were 

holding hands waiting to cross the street, a fire truck and a 

pickup truck collided. The pickup truck struck I'Maya, propelling

her body sixty-five feet south of the intersection where she and 

her family had been standing. Two-year-old I'Maya died as a result 

of the accident.

Plaintiffs filed a civil action against defendants predicated 

on several theories of civil liability, including bystander 

negligent infliction of emotional distress (NIED). After joinder 

of issue and the exchange of discovery, the trial court granted 

defendants' motion for partial summary judgment to dismiss 

Benning's bystander NIED claim. The motion judge found Benning 

did not present sufficient evidence that she had an "intimate, 

familial relationship" with two-year-old I'Maya to satisfy the 

requirements to bring a claim under Portee v. Jaffee, 84 N.J. 88 

(1980).

Plaintiffs moved before this court for leave to appeal the 

trial court's order granting partial summary judgment on this 

issue. Garden State Equality, Inc., and the New Jersey State Bar 
4 A-4754-16T4

Association moved to participate as Amici Curiae. In an order 

dated February 6, 2017, we denied the motion for leave to appeal. 

By order dated July 7, 2017, the Supreme Court granted plaintiffs'

and amici's motions for leave to appeal and summarily remanded 

this matter for this court to determine "whether plaintiff [Valerie 

Benning] may pursue her claims for negligent infliction of 

emotional distress" under Portee.

After reviewing the record presented to the Law Division, we 

conclude the motion judge erred in dismissing Benning's claims 

under Portee as a matter of law. We thus remand this matter to 

the trial court for such further proceedings as may be warranted, 

including a trial before a jury.

I

I'Maya was not biologically related to Benning. At the time 

of the accident, Benning did not have legal custody rights to 

either I'Maya or her older brother I'Zhir. According to her 

deposition testimony taken on September 7, 2012, Benning met 

Moreland in August 2007, when Moreland was working at Foot Locker

and Benning "just happened to be shopping." They exchanged phone 

numbers and started dating on August 22, 2007. The record does 

not precisely identify the date when Benning and Moreland began 

living together as a family. Viewing the evidence in the light 

most favorable to Benning, they have been living together since 
5 A-4754-16T4

approximately 2008. Thus, at the time of Benning's deposition in 

September 2012, they had been living together for nearly five 

years. They were engaged on November 19, 2011, and were married 

on March 31, 2014.

I'Maya was approximately thirteen months old when Benning and 

Moreland began their romantic relationship. At the time of the 

accident, their household included Benning's godson Armonti, and 

Moreland's biological children, I'Maya and I'Zhir. Benning 

testified at her deposition that I'Maya began calling her "mom"

or "mommy" a few weeks into her relationship with Moreland; it 

took approximately three months for the older boy I'Zhir to start 

calling Benning "mom." In a psychological evaluation report dated 

October 12, 2015, Dr. Gerald Cooke noted that I'Zhir drew "[m]ommy 

Val", "[m]ommy I'Asia," himself, I'Maya, and Armonti. Dr. Cooke 

also noted that despite the death of his younger sister and 

Armonti's departure to live with his mother, I'Zhir "still thinks

of both of them as part of the family." He opined that the child 

"feels safest when he is with his two moms and also his grandmother 

and his extended family."

On the day of the accident, Benning was holding I'Maya's hand 

as they waited to cross Route 129 to see Disney on Ice. Benning 

described hearing the fire truck's sirens, which alerted her to 

stop and "find out which way it was coming from so I wouldn't put 
6 A-4754-16T4

my kids into danger." She has no recollection of the accident 

itself. At her deposition, defense counsel asked Benning to 

describe her reaction immediately after the accident:

Q. Do you recall being struck by anything?

A. No, I just remember being on the ground.

Q. Do you have any recollection with respect 

to the incident once you were picked up by 

[Moreland]?

A. After I was picked by [Moreland], she asked 

me if I was okay. And Armonti was screaming 

at the top of his lungs at the time. And 

I'Zhir was saying that . . . he was okay, but 

he was scared, and he started to scream, a 

fire truck hit my sister, a fire truck hit my 

sister. And I didn't understand what he was 

saying, you know. I didn't know what he was 

saying.

But, you know, I was trying to gather myself. 

So I asked [Moreland], I said, where is Maya? 

And she said, I don't know. And I looked 

down, and I didn't see her. And Armonti was 

still screaming, but he was on the ground, 

because he couldn't stand up. And at first 

we thought that he was just . . . like 

screaming typical of a two-year-old, but his 

legs and his ankles were broke, and he 

couldn't move.

And at that point I noticed that I'Maya was 

no longer holding my hand, and it dawned on 

me that [Moreland] was lifting me up. So I 

knew she wasn't, you know, next to me. And I 

looked up, and she was far away from me . . . 

going southbound. She was . . . further back 

on the highway . . . .

Q. Okay.
7 A-4754-16T4

A. After that, I looked at [Moreland]. She 

tried to pick Monti up. And I told her --

just gave her a look or -- that I was going 

to, you know, go get Maya. And just started 

running. It felt like forever.

Q. Take your time. Take your time. I realize 

this is difficult.

A. I'm sorry.

Q. That's okay.

. . . .

A. The death of anyone's child is devastating, 

but to talk about your own or one that you 

love like your own is even harder. Okay.

Q. Take your time.

A. At that point I remember [Moreland] like 

trying to scream, she's like, is Maya okay? 

And I knew she was not okay. She was not 

okay. Within seconds after that, there was a 

female, I don't know who she was, and her child 

-- her child -- I heard he just started 

screaming, mom, please help them, mom, please 

help them, mom.

I'Maya and Benning were brought to the hospital in separate 

ambulances. While en route to the hospital, Benning responded to 

the questions the Emergency Medical Technicians (EMT) had about 

I'Maya's medical history. Benning testified that she told the 

EMTs that I'Maya had a rare "G6 PD"

1 deficiency and generally 

 

1 According to the National Institute of Health, Genetics Home 

Reference:
8 A-4754-16T4

described her "likes and dislikes." When she arrived in the 

emergency room, Benning heard I'Zhir tell the medical staff: "my 

name is I'Zhir, and I have two moms, and I know where I live . . 

. ."

Benning testified that she became hysterical after she 

learned that I'Maya had died. She was placed in restraints until 

she agreed to take some form of sedative "so I could say goodbye"

before the medical staff removed the child's body. The nurses 

removed Benning's restraints after the sedatives began to calm her 

down. Benning was also involved in the financial decisions 

regarding the child's funeral arrangements. She and Moreland

borrowed money from their families to pay for the cost of the

funeral. The record also contains reports of psychological 

evaluations that describe the emotional and psychological trauma 

 

Glucose-6-phosphate dehydrogenase deficiency 

is a genetic disorder that occurs almost 

exclusively in males. This condition mainly 

affects red blood cells, which carry oxygen 

from the lungs to tissues throughout the body. 

In affected individuals, a defect in an enzyme 

called glucose-6-phosphate dehydrogenase 

causes red blood cells to break down 

prematurely. This destruction of red blood 

cells is called hemolysis.

[Genetics Home Reference, Glucose-6-phosphate 

dehydrogenase deficiency, National Institute 

of Health, 

https://ghr.nlm.nih.gov/condition/glucose-6-

phosphate-dehydrogenase-deficiency.] 
9 A-4754-16T4

Benning suffered as an aftershock of I'Maya's death and the 

emotional pain she continues to suffer.

II

 The motion judge characterized Benning and Moreland's 

relationship at the time of the accident as "lovers." With respect 

to Benning's relationship with I'Maya, the judge found:

The plaintiffs allege that the decedent . . . 

referred to Ms. Benning as mom. It seemed 

clear that a [Portee] claim . . . is reserved 

to those who are actually closer related and, 

not only closely related by way of being 

family but also in an intimate family 

relationship. So an intimate relationship 

alone would not suffice.

There is a requirement that they have to be 

family. [Portee] talks about familial

relationship but it didn't say family-ish or 

something similar to a family. It says 

familial and there are cases that must use the 

word family. It has to be family and there's 

no question of fact that Ms. Benning was not. 

The evidence is that she was a girlfriend and 

she might have been part of the child's 

household, but by any definition that I can 

find in the law about family, Ms. Benning 

doesn't meet it. The undisputed facts are 

that she was neither a biological or adoptive 

parent . . . .

The judge also considered the concept of "psychological 

parent,2" but rejected its application here because Benning had 

 

2 The term "psychological parent" was first discussed by our 

Supreme Court in V.C. v. M.J.B., 163 N.J. 200 (2000). In that 

case, the Court was "called on to determine what legal standard 
10 A-4754-16T4

not presented expert evidence in support of this approach. The 

judge found expert testimony was necessary

to know what goes on in a [two]-year-old's 

mind, I understand that the [two]-year old has 

passed away, you can't do a psychological 

evaluation now but if there had been an 

application for custody where Ms. Benning was 

proposing that she was a psychological parent, 

that could have happened during the [two]-

year-old's lifetime. It didn't happen so 

there's no such report . . . [and] [j]ust using 

the word mom all by itself doesn't count for 

much, whether there's a secure relationship, 

a bonded relationship, a reliant relationship, 

whether this is someone that the [two]-yearold would have looked to for a comfort, the 

facts just aren't there to be able to know 

those things. And that's where I go back to 

the standard for summary judgment. There 

actually has to be facts. It's one thing to 

give favorable inferences which . . . I have 

to do for summary judgment, but here . . . 

what was going on in a [two]-year-olds mind 

in terms of that relationship, there's just 

no way to be able to get that information and

it's never going to come out.

The motion judge also distinguished the issue here from the 

Court's holding in Dunphy v. Gregor, 136 N.J. 99 (1994), where the 

 

applies to a third party's claim to joint custody and visitation 

of her former domestic partner's biological children, with whom 

she lived in a familial setting and in respect of whom she claims 

to have functioned as a psychological parent." Id. at 205. The 

legal and public policy considerations that led the Court in V.C.

to recognize the concept of "psychological parent" in the context 

of a child custody dispute in the Family Part, are not dispositive 

to a determination of whether Benning falls within the class of 

litigants who may bring a Portee claim. 
11 A-4754-16T4

Court allowed a NIED claim brought by the fiancée of a decedent 

to proceed to a jury trial. The judge explained: 

Ms. Moreland and Ms. Benning weren't even 

engaged at the time. I understand the laws 

regarding same sex relationships had changed 

over time but there was a statute that did 

allow for that in New Jersey and whether they 

could have availed themselves of any such laws 

in other jurisdictions hasn't been addressed 

in any of the papers.

In dismissing Benning's NIED claim, the motion judge found 

that "Ms. Benning was part of a very small child's life for 17 

months at most . . . . There's no evidence that there was any 

permanent bond or that the relationship that she shared with the 

decedent was one that was deep, lasting, and genuinely intimate." 

III

On appeal, plaintiffs argue that Benning is entitled to bring 

a bystander NIED claim because her relationship with I'Maya was 

intimate and familial. They argue the motion judge erroneously 

focused his analysis on the relationship between Benning and 

Moreland and the absence of evidence showing their relationship 

was formally sanctioned by the legal avenues available to them at 

the time, such as a civil union or domestic partnership. 

Plaintiffs also argue the judge misapplied the standards for 

deciding a motion for summary judgment by drawing an adverse 

inference against them for failing to seek formal legal recognition 
12 A-4754-16T4

of the relationship between Benning and the child. Plaintiffs 

argue that whether the relationship between I'Maya and Benning 

qualifies for recovery under Portee is a question of fact for the 

jury. 

Defendants argue that summary judgment is the appropriate way 

to proceed in this case. They maintain that the question of 

whether Benning's relationship with the child entitles her to 

bring a NIED claim is a question of law that was appropriately 

decided by the motion judge. Defendants argue Benning has not 

presented sufficient competent evidence to satisfy all of the 

elements of the tort of NIED. 

Amicus Garden State Equality is a civil rights organization 

dedicated to protecting and advancing the legal rights of this 

State's LGBTQ community. It argues that the Law Division erred 

in dismissing Benning's NIED claim as a matter of law because 

there are genuine issues of material fact regarding the nature of 

I'Maya and Benning's relationship. Garden State Equality further 

argues that the trial court erred by considering the marital status 

of Moreland and Benning in determining the relationship between 

I'Maya and Benning. Amicus argues this approach ultimately 

discriminates against same-sex couples by holding them to a higher 

standard than the standard applied to heterosexual couples. 
13 A-4754-16T4

Amicus New Jersey State Bar Association (NJSBA) argues that 

the type of intimate familial relationship required to bring a 

Portee claim is not strictly limited to plaintiff's marital status

to the child's biological parent; or whether she had a legally 

recognized custodial status to the decedent; or even whether she 

was biologically related to the decedent. The NJSBA argues that 

the quality of Benning and I'Maya's relationship is the relevant 

issue here. This Amicus argues that is purely a factual issue 

that must be considered and decided by a jury. 

The sole legal question the Supreme Court ordered us to 

address is whether Benning falls within the class of litigants 

entitled to bring a civil action against defendants under the tort 

of negligent infliction of emotional distress. We begin our 

analysis by describing the material facts in Portee, the seminal 

case that first recognized the legal viability of this cause of 

action in our State, and which also involved the accidental death 

of a child. In Portee, a seven-year old boy became trapped between 

an elevator's outer doors and the wall of the elevator shaft. 

Portee, 84 N.J. at 91. His mother watched helplessly as her son 

struggled for over four hours as rescue workers made repeated, but 

ultimately unsuccessful attempts to save the child's life. Ibid. 

The mother witnessed her son's agonizing death. Ibid. 
14 A-4754-16T4

Witnessing the horrific demise of her child caused the mother 

severe emotional pain and serious psychological trauma. Ibid. 

She became "severely depressed and self-destructive." Ibid. She 

was hospitalized after an attempted suicide and was treated for 

self-inflicted injuries. Ibid. She thereafter "received 

extensive counseling and psychotherapy to help overcome the mental 

and emotional problems caused by her son's death." Id. at 92. As 

the guardian of our State's common law, the Supreme Court fashioned 

the tort of negligent infliction of emotional distress to permit 

a limited class of litigants the right to seek a measure of 

compensation for the residual emotional and psychic trauma caused

by the negligence of the tortfeasor. As Justice Pashman explained:

The cause of action we approve today for the 

negligent infliction of emotional distress 

requires proof of the following elements: (1) 

the death or serious physical injury of 

another caused by defendant's negligence; (2) 

a marital or intimate, familial relationship 

between plaintiff and the injured person; (3) 

observation of the death or injury at the 

scene of the accident; and (4) resulting 

severe emotional distress. We find that a 

defendant's duty of reasonable care to avoid 

physical harm to others extends to the 

avoidance of this type of mental and emotional 

harm.

[Portee, 84 N.J. at 101 (emphasis added).]

Justice Pashman ended his description of the essential 

elements of this tort by quoting the words of Chief Justice 
15 A-4754-16T4

Weintraub: "Whether a duty exists is ultimately a question of 

fairness. The inquiry involves a weighing of the relationship of 

the parties, the nature of the risk, and the public interest in 

the proposed solution." Ibid. (quoting Goldberg v. Housing Auth. 

of Newark, 38 N.J. 578, 583 (1962)). Our Supreme Court has 

revisited its holding in Portee to expand the class of litigants 

entitled to relief when necessary to serve its underlying public 

policy, Dunphy v. Gregor, 136 N.J. 99 (1994) (permitting the

fiancée of the decedent to bring a claim), and to clarify and 

narrow its scope when warranted, McDougall v. Lamm, 211 N.J. 203

(2012) (denying relief to a litigant who witnessed the traumatic

death of a pet). 

Our focus here is exclusively on the second element of the

four elements of proof required to bring a negligent infliction 

of emotional distress cause of action, to wit: whether Benning

presented sufficient evidence that an "intimate, familial 

relationship" existed between her and two-year-old I'Maya at the 

time the child tragically perished in this accident. Portee, 84 

N.J. at 101. Because the Law Division decided this issue as a 

matter of law, our review is de novo. We do not accord any 

deference to the motion judge's legal conclusions. Nicholas v. 

Mynster, 213 N.J. 463, 478 (2013).
16 A-4754-16T4

What constitutes a "familial relationship" is perforce a 

fact-sensitive analysis, driven by evolving social and moral 

forces. No one can reasonably question that the social and legal 

concept of "family" has significantly evolved since the Court 

decided Portee in 1980. Thirty-eight years ago, gay, lesbian, and 

transgender people were socially shunned and legally unprotected 

against invidious discrimination in employment, housing, and 

places of public accommodation under our State's Law Against 

Discrimination (LAD), N.J.S.A. 10:5-1 to -49.

3 The notion of 

same-sex couples and their children constituting a "familial 

relationship" worthy of legal recognition was considered by a 

significant number of our fellow citizens as socially and morally 

repugnant and legally absurd. 

The overwhelming number of our fellow citizens now 

unequivocally reject this shameful, morally untenable bigotry; our 

laws, both legislatively and through judicial decisions, now 

recognize and protect the rights of LGBTQ people to equal dignity 

and treatment under law. Throughout our country, United States 

v. Windsor, 570 U.S. 744 (2013), and in our State, Garden State 

Equal. v. Dow, 434 N.J. Super. 163 (App. Div.), certif. granted, 

 

3 The Legislature did not amend the Law Against Discrimination to 

prohibit invidious discrimination in employment, housing, and 

places of public accommodation on the basis of "sexual orientation"

until 1992. See N.J.S.A. 10:5-4; A. 519 (1991); S. 3758 (1992).
17 A-4754-16T4

216 N.J. 1, stay denied, 216 N.J. 314 (2013), same-sex couples may 

legally marry and have children.

Following this path of social and legal progress under law, 

we now turn our attention to Dunphy, a case through which our 

Supreme Court clarified the second element of a Portee claim. The

plaintiff and the decedent in Dunphy were a heterosexual couple

who cohabitated and were engaged to be married. Dunphy, 136 N.J.

at 102. They planned to marry four years after their engagement. 

Ibid. Two years into their engagement, the decedent was killed

on Route 80 while helping a friend change a tire. Ibid. The

plaintiff witnessed the vehicle strike her fiancée. Ibid. She

was the first person to reach his body, and attempted to comfort

him. Ibid. He died the next day in the hospital. Ibid.

The case came before the Supreme Court based on a dissent in

the Appellate Division opinion. Dunphy v. Gregor, 261 N.J. Super.

110, 124 (App. Div. 1992). Our dissenting colleague "interpreted

the Portee requirement of a 'familial relationship' as one

restricted to marriage or blood ties." Dunphy, 136 N.J. at 104

(citing Dunphy, 261 N.J. Super. at 125). However, the Supreme

Court endorsed the views expressed by our colleague Judge Kestin,

whom, writing for the majority on the panel, held:

Irrespective of the label placed upon a

particular relationship, it is a jury question

whether the inter-personal bonds upon which
18 A-4754-16T4

the cause of action is based actually exist.

A defendant should always have the right, even

in the case of a parent and child or a husband

and wife, to test the operative facts upon

which the claim is based irrespective of the

de jure relationship.

[Dunphy, 136 N.J. at 112 (quoting Dunphy, 261

N.J. Super. at 122).]

The Court expanded upon Judge Kestin's reasoning by

emphasizing that "this critical determination must be guided as

much as possible by a standard that focuses on those factors that

identify and define the intimacy and familial nature of such a

relationship." Ibid. The Court distilled this "standard" to the

following basic, yet critically important factors: (1) the

duration of the relationship; (2) the degree of mutual dependence;

(3) the extent of common contributions to a life together; (4) the

extent and quality of shared experience; and (5) whether the

plaintiff and the decedent (or seriously injured person) "were

members of the same household, their emotional reliance on each

other, the particulars of their day to day relationship, and the

manner in which they related to each other in attending to life's

mundane requirements." Ibid. (quoting Dunphy, 261 N.J. Super. at

123).

Critical to our analysis here, however, is not only the Dunphy

Court's unambiguous rejection of any attempt to restrict the class
19 A-4754-16T4

of claimants to married persons, but also the articulation of the

public policy underpinning the tort itself:

The basis for that protection is the existence 

of an intimate familial relationship with the 

victim of the [tortfeasor's] negligence. 

An intimate familial relationship that is

stable, enduring, substantial, and mutually

supportive is one that is cemented by strong

emotional bonds and provides a deep and

pervasive emotional security. We are

satisfied that persons who enjoy such an

intimate familial relationship have a

cognizable interest in the continued mutual

emotional well-being derived from their

relationship. When that emotional security

is devastated because one witnesses, in close

and direct proximity, an accident resulting

in the wrongful death or grievous bodily

injury of a person with whom one shares an

intimate familial relationship, the

infliction of that severe emotional injury may

be the basis of recovery against the

wrongdoer.

[Id. at 115.]

Against this analytical backdrop, we now apply the standard 

codified in Rule 4:46-2(c), and hold that Benning presented

sufficient evidence from which a jury could find that she and twoyear-old I'Maya had an intimate familial relationship at the time

of the child's tragic death. Viewed in the light most favorable

to the non-moving party, the evidence shows that at the time of

the accident, Benning and her now wife I'Asia Moreland, had 

cohabitated for at least seventeen months, sharing the
20 A-4754-16T4

responsibility for the care of three young children, one of whom

was I'Maya. A rational jury can find that Benning was a de facto 

mother to this child, and felt her loss as deeply as any parent 

facing that horrific event. Benning's deposition testimony 

supports this finding.

The duration of Benning's relationship with I'Maya indicates 

she had been part of this two-year-old girl's life since she was 

an infant. Dr. Cooke's psychological evaluation report of the 

family also supports the strong familial bond that existed before 

the accident between the children and these two "moms." Although 

we are confident that this record is sufficient to withstand 

summary judgment, both the court and the litigants would have been 

better served if Benning's counsel would had augmented the record 

with certifications from individuals who knew and saw these two 

women interact with these children on a day-to-day basis. These 

certifications may have assisted the motion judge in his decision.

Finally, we would be remiss if we did not comment on Benning's 

counsel's decision to include, as part of the appellate record, a 

photograph of the child's nude body laid out on the autopsy table. 

Given the limited scope of this appeal, we do not understand what 

possible relevance including this photograph has to the central 

issue in this case. Its inclusion served absolutely no legal 

purpose and was grossly insensitive to all involved.
21 A-4754-16T4

Reversed and remanded. We do not retain jurisdiction.