NOT FOR PUBLICATION WITHOUT THE
PRIOR APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO . A

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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.

__________________________________ ____ _

A rgu ed January 17, 2018

- Decided

Before Judge Fuentes, Manahan, and Suter.

On appeal from Superior Court of New Jersey , Law Division, Mercer County, Docket No. L

0227

- 11.

Robin Kay Lord argued the cause for appellants (Law Offices of Robin Kay L ord, LLC and Kardos, Rickles, Hand & Bidlingmaier, August 17, 2018 APPROVED FOR PUBLICATION

August 17, 2018

APPELLATE DIVISION2 A

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- 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 Cit y of Trenton, Albert DiNatale and Benito
Bello.

Lillian L. Nazzaro argued the cause for

re spondent County of Mercer (Arthur R. Sypek, Jr. Mercer County Counsel, attorney; Lillian L. Nazzaro, Assistant County Counsel, on the brief).

Jennifer L. Hamilton a rgued the cause for amicus curiae Garden State Equality, Inc. (Hamilton La w, attorneys; Jennifer L. Hamilton, on the brief).

Thomas H. Prol argued the cause for amicus curiae New Jersey State Bar Association (Robert B. Hille, Presid ent, New Jer s ey S tate

B ar 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 younger3 A

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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 cro ss 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 hand s 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, t he trial court granted

defendants ' motion for partial summary judgment to dismiss

Benning ' s bystande r 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 Sta te Equality, Inc., and the New J ersey State Bar4 A

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Association mov ed 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 a mici ' 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 reman d 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

. " The y exchanged phone

numbers and sta rted dating on August 22, 2007. T he 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 since5 A

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approximate ly 2008. Thus, a t the time of Benning ' s deposition in

September 2012, they had been living together for nearly five

years. They were engaged on Novem ber 19, 2011, and were married

on March 31, 2014.

I ' Maya was approximately thirteen months old when Benni ng 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 dr ew " [ 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 o f them as part of the family. " He opined that the child

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

and his extended family. "

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

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

described hearing t he fire truck ' s sirens, which alerted her to

stop and " find out which way it was coming from so I wouldn ' t pu t6 A

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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 w as still screaming, but he was on the ground,
because he couldn ' t stand up. And at first
we th ought that he was just . . . like

screa ming typical of a two

- year

- old, but his legs and his ankles were broke, and he
couldn ' t move.

An d 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. A nd I looked up, and she was far away from me . . .

g oing southbound. She was . . . further back on the highwa y . . . .

Q. Okay.7 A

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- 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. I t felt like forever.

Q. Take your time. Take y our 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 kn ow 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 hos pital in separate

ambulances. While e n route to the hospital, Benning responded to

the questions the E mergency M edical T echnicians (EMT) had about

I ' Maya ' s med ical 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

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described her "likes and dislikes." W hen she arrived in the

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

name is I ' Zhir, a nd I have tw o moms, and I know where I live . .

. . "

Benning testified that she became hysterical a fter 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 describ e 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 d own 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

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Benning suffered as an aftershock of I ' Maya ' s death and t he

emotional pain she cont inues 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. S o an intimate relationship
alone wo uld 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 simila r 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 i t. 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 standard10 A

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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 cust ody 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]

- year

old 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 ba ck 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 judg ment, 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.

T he 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 function ed 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 dete rmination of whether Benning falls within the class of litigants who may bring a Portee claim.11 A

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C ourt 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
allo w 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 s mall 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 in timate. "

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 part nership.

Plaintiffs also argue the judge misapplied the standards for

deciding a motion for summary judgment by dr awing an adverse

inference against them for failing to seek formal legal recognition12 A

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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 ques tion 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 NI ED claim is a question of law t hat was appropriately

decided by the motion judge. Defendants argue Benning has not

present ed 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 prote cting 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

discriminate s aga inst same

- sex couples by holding them to a higher

standard than the standard applied to heterosexual couples.13 A

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Amicus New Jersey State Bar Association (NJSBA) argues that

the type of intimate familial relationship required to bring a

Portee claim is not st rictly 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 biological ly relat ed to the decedent. T he N JSBA 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 o ur

analysis by describing the material facts i n Portee , th e seminal

case that first recognized the legal vi ability of this cause of

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

of a child. I n 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

struggle d for over four hours as rescue workers made repeated, but

ultimately u nsuccessful atte mpts to save the child ' s life. Ibid.

The mother witnessed her son ' s agonizing dea th. Ibid.14 A

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Witnessi ng the horrific demise of her child caused the mother

severe emotional pain and serious psycho logical trauma. Ibid.

She became " severely depressed and self

- destructive

. " Ibid. She

was hospitalized after an attempted suicide and was treated for

self

- inf licted 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:

T he 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 ext ends 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 Justice15 A

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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

fiancé e of the decedent to bring a claim), and to clarify and

narrow its scope when warranted, McDougall v. Lamm , 211 N.J. 20 3

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

death of a pet).

O ur focus here is exclusively on the second element of th e

four element s 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

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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 significa ntly evolved since the Court

decided Portee in 1980. T hirty

- 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 und er 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 legal ly absurd.

T he overwhelming number of our fellow citizens now

unequivocally reject this shameful, morally untenable bigotry ; our

laws, both legislati vely and through judicial decisions, now

recognize and protect the rights of LGBTQ people to equal dignity

and treatment under law. Throughout our count r y, 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 accommodati on on the basis of "sexual orientation " until 199 2. See N.J.S.A. 10:5

- 4 ; A. 519 (1991); S. 3758 (1992)

.17 A

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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 clarif ied the second element of a Portee claim

. T he

plaintiff and the decedent in Dunphy were a heterosexual couple

who cohabitat ed 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 help ing a friend change a tire. Ibid. The

p laintiff 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

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

(citing Dunphy , 261 N.J. Super. at 1 25). 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 which18 A

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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 a nd 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 reject ion of any attempt to restrict the class19 A

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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 w ith 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 clos e 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 wrongd oer.

[ 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 two

year

- 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 the20 A

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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 depositio n testimony

supports this finding.

T he 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 ha d 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, w e 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, w e do not understand what

possible rele vance 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

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Reversed and remanded. We do not retain jurisdiction.