DCPP VS. P.D. AND A.W.IN THE MATTER OF THE GUARDIANSHIP OF S.D.(FG-02-0082-14, BERGEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5437-14T4

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
October 20, 2017
v.
APPELLATE DIVISION
P.D.,

Defendant-Appellant,

and

A.W.,

Defendant.
____________________________________

IN THE MATTER OF THE GUARDIANSHIP OF
S.D.,

Minor.
_____________________________________

Argued September 19, 2017 – Decided October 20, 2017

Before Judges Yannotti, Leone and Mawla.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen
County, Docket No. FG-02-0082-14.

Patricia Nichols, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Ms. Nichols, of counsel and on the
briefs).
 Elliott M. Siebers, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Andrea M. Silkowitz, Assistant Attorney
General, of counsel; Mr. Siebers, on the
brief).

Noel C. Devlin, Assistant Deputy Public
Defender, argued the cause for minor (Joseph
E. Krakora, Public Defender, Law Guardian,
attorney; Mr. Devlin, of counsel and on the
brief).

The opinion of the court was delivered by

YANNOTTI, P.J.A.D.

P.D. appeals from a judgment entered by the Family Part on

July 22, 2015, which terminated his parental rights to the minor

child S.D.1 On appeal, P.D. argues that the judgment should be

reversed because the Division of Child Protection and Permanency

(Division) and the trial court failed to comply with the Vienna

Convention on Consular Relations (VCCR), April 24, 1963, 21

U.S.T. 77; he was denied due process and the right to effective

assistance of counsel; and the Division failed to establish with

clear and convincing evidence the criteria for termination of

his parental rights. We reject these arguments and affirm the

trial court's judgment.

1
In accordance with Rule 1:38-3(d), we use initials to identify
the parties and others involved in this matter.

2 A-5437-14T4
 I.

We briefly summarize the salient facts and procedural

history. In August 2006, A.W. gave birth to S.D. and several

days later, the Division received a report that the child was

living in an apartment where certain individuals were using

alcohol and drugs. Two days later, the hospital where S.D. was

born reported to the Division that S.D. had tested positive for

cocaine. The Division investigated the report and substantiated

physical abuse by A.W., based upon the child's positive drug

test.

On August 25, 2006, the Division removed S.D. from A.W.'s

care on an emergent basis without a court order and placed the

child in a resource home.2 Thereafter, the Division filed a

verified complaint in the Family Part, seeking care, custody,

and supervision of S.D., which the court granted. In September

2006, A.W. stipulated that she had abused or neglected the

child. Several days later, the Division placed S.D. in the care

of K.A., a maternal relative, and her husband, R.A.

At his first court appearance in August 2006, P.D. disputed

paternity of S.D. Tests confirmed, however, that P.D. was the

child's biological father. P.D. did not offer himself as a

2
The child's removal was authorized by the Dodd Act, which as
amended is codified at N.J.S.A. 9:6-8.21 to -8.82. See N.J. Div.
of Youth & Fam. Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).

3 A-5437-14T4
placement for the child at that time, but the Division provided

him with supervised visitation. Initially, P.D.'s visitation

took place at the resource home, but in January 2007, the visits

were supervised at the Division's office due to an incident

between the biological parents and the resource parents. The

Division later returned the child to A.W.'s physical custody,

but remained involved with the family.

In March 2007, the Family Part judge entered an order,

which precluded P.D. from having any contact with S.D. until he

complied with a required psychological evaluation and substance-

abuse assessment. P.D. later participated in a psychological

evaluation. In addition, between May and August 2007, P.D.

attended a substance abuse program.

P.D. stopped attending the program because he was charged

with a violation of probation. He had been serving a

probationary term due to a conviction in 2006 on drug charges.

P.D. also has a history of domestic violence against A.W. and

another woman, C.F., whom he later married.

In January 2008, the trial court dismissed the abuse or

neglect proceedings without making any findings concerning P.D.

The court's order stated that A.W. and P.D. shared legal custody

of S.D., and A.W. would have physical custody of the child. At

some point, P.D. was charged with aggravated assault. He pled

4 A-5437-14T4
guilty to an offense and the court sentenced him to a three-year

prison term, beginning in March 2008. In December 2008, P.D. was

deported to his home country of Cape Verde, off the coast of

Africa.

Several years later, in April 2012, the Division received a

report of domestic violence involving A.W. and her paramour,

J.G. S.D. was then five years old. The Division investigated the

report and substantiated A.W. for neglect. In July 2012, the

Division filed a complaint in the Family Part, seeking care and

supervision of S.D., and the court granted the application. In

August 2012, the Division informed P.D. that it was again

involved with the family.

In October 2012, the Division filed another complaint for

care and supervision of S.D., and sought the issuance of

restraints against J.G. The court ordered the Division to take

custody of S.D. Due to her drug use, A.W. stipulated to abuse or

neglect of S.D. In November 2012, the Division again placed S.D.

with K.A. and R.A., and the Division informed P.D. of the

child's placement.

The Division considered P.D. as a possible placement for

the child, but it had difficulty assessing P.D. and his living

situation because he was living in Cape Verde. The Division

referred the matter for an international home study, which was

5 A-5437-14T4
completed in November 2013. The Division found the report

inadequate because it did not address concerns it had regarding

P.D.'s criminal history. The report did not recommend S.D.'s

placement with P.D.

In 2012 and 2013, the Division considered placing the child

with P.D.'s relatives in Massachusetts. The Division ruled out

these placements because it believed it was in the child's best

interests to remain in her current resource home. In addition,

one of the paternal relatives did not have the resources to care

for the child.

In January 2014, the trial court approved the Division's

permanency plan for termination of P.D. and A.W.'s parental

rights followed by adoption. In March 2014, the Division filed

its complaint for guardianship of S.D., and the court entered an

order terminating the abuse or neglect proceedings, again

without any findings concerning P.D. In December 2014, A.W. made

an identified surrender of her parental rights to K.A. and R.A.3

In June 2015, the Family Part judge conducted a trial on

the Division's complaint. At the trial, the Division presented

testimony from its caseworker Priscilla Ortiz and Dr. Elayne

3
We note that K.A. and R.A. later separated but the Division and
K.A. remain committed to K.A.'s adoption of the child.

6 A-5437-14T4
Weitz, who was qualified as an expert in the field of

psychology.

P.D. was in Cape Verde at the time of the trial and he did

not participate in the first day of trial.4 On the second day of

the trial, P.D. participated by phone and provided sworn

testimony. He opposed the termination of his parental rights. He

testified that he wanted S.D. sent to Cape Verde to live with

him until she reached high-school age.

On July 22, 2015, the judge filed a written opinion in

which he found that the Division had established by clear and

convincing evidence all of the criteria for termination of

P.D.'s parental rights in N.J.S.A. 30:4C-15.1(a). The judge

determined that P.D. had harmed S.D. because he had been absent

during most of S.D.'s life, and he failed to take any steps to

assume a parental role for the child.

In his opinion, the judge noted that after 2008, P.D.

failed to maintain contact with S.D., and he lacked knowledge of

essential facts about her, including her current grade in

school. The judge also noted that P.D. did not appear by phone

4
P.D. asked the court to allow him to participate in the trial
by video-conferencing, but he failed to provide the court with
the necessary technical information. P.D.'s attorney advised the
trial judge that if P.D. could not participate by video-
conferencing, the plan was to have him participate
telephonically. The judge then placed a telephone call to P.D.,
but he failed to answer.

7 A-5437-14T4
for the first day of trial, and he did not acknowledge the

child's psychological needs.

The judge also observed that P.D. had not complied with any

of the recommendations that the Division made "to remedy the

fact that he is a virtual stranger to his child." The judge

rejected P.D.'s claim that S.D. should be sent to live with him

in Cape Verde. The judge wrote that "[t]o remove the child from

her current placement and move her to another country to live

with a virtual stranger would cause severe and enduring harm."

In addition, the judge found that P.D. was unwilling or

unable to eliminate the harm facing S.D. because he had not

maintained contact with his daughter since 2008. P.D. also had

no long-term plan for the child, since he intended to raise her

only until she reached high-school age. Finally, the judge

relied upon Dr. Weitz's testimony to conclude that separating

S.D. from her resource parent would cause her serious and

enduring emotional and psychological harm, which P.D. would not

be able to ameliorate.

The judge memorialized his decision in an order dated July

22, 2015, terminating P.D.'s parental rights. Thereafter, P.D.

filed a notice of appeal from the court's July 22, 2015 order.

He also filed a motion for leave to file an appeal as within

time from certain orders entered by the trial court in the abuse

8 A-5437-14T4
or neglect proceedings, and a motion to consolidate that appeal

with this case. We denied the motions.

We also denied P.D.'s motion to supplement the record on

appeal in the guardianship case with transcripts of the abuse or

neglect proceedings. P.D. filed a petition for certification,

seeking review by the Supreme Court of our rulings on these

motions. The Court denied the petition. Div. of Child Prot. &

Perm. v. P.D., 227 N.J. 248 (2015).

II.

We first consider P.D.'s argument, raised for the first

time on appeal, that the guardianship judgment should be vacated

because the Division and the trial court failed to provide

notice of the 2012 abuse or neglect proceedings to the Cape

Verde consulate, which P.D. argues was required by the VCCR. He

also contends he was denied due process of law because he had no

legal representation in the 2012 abuse or neglect proceedings,

which allegedly had an adverse effect upon his rights in the

guardianship action.

"The VCCR is a binding multi-lateral treaty to which over

160 nations are parties." State v. Jang, 359 N.J. Super. 85, 91

(App. Div.), certif. denied, 177 N.J. 492 (2003). The VCCR "was

drafted in 1963 with the purpose, evident in its preamble, of

'contribut[ing] to the development of friendly relations among

9 A-5437-14T4
nations, irrespective of their differing constitutional and

social systems.'" Sanchez-Llamas v. Oregon, 548 U.S. 331, 337,

126 S. Ct. 2669, 2674, 165 L. Ed. 2d 557, 571 (2006) (quoting

VCCR, supra, 21 U.S.T. at 79) (alteration in original). The VCCR

addresses the functions of a consular post established by the

nation sending the consul (the sending State) in the nation

receiving the consul (the receiving State). See VCCR, supra, 21

U.S.T. at 82. Both the United States and Cape Verde are

signatories to the VCCR.

The Supreme Court of the United States has not determined

whether the VCCR is "self-executing" in the sense that it

creates individual rights that are judicially enforceable.

Sanchez-Llamas, supra, 548 U.S. at 337, 126 S. Ct. at 2674, 165

L. Ed. 2d at 571 (assuming for purposes of argument that the

VCCR created judicially-enforceable rights, and holding that

suppression of evidence in a criminal proceeding would not be an

appropriate remedy for violation of Article 36 of the VCCR). We

will assume for purposes of our decision that the VCCR creates

individual rights that may be enforced in court.

On appeal, P.D. relies upon Article 37 of the VCCR, which

requires a receiving State (in this case, the United States), to

provide information regarding guardianships involving any

"national of the sending State" (in this case, Cape Verde). P.D.

10 A-5437-14T4
argues that the VCCR required the Division and/or the court to

notify the Cape Verde consulate about the 2012 abuse or neglect

proceedings because S.D. allegedly has dual citizenship in the

United States and Cape Verde.5

Article 37 of the VCCR provides, in pertinent part:

If the relevant information is available to
the competent authorities of the receiving
State, such authorities shall have the duty:

. . . .

(b) to inform the competent consular post
without delay of any case where the
appointment of a guardian or trustee appears
to be in the interests of a minor or other
person lacking full capacity who is a
national of the sending State. The giving of
this information shall, however, be without
prejudice to the operation of the laws and
regulations of the receiving State
concerning such appointments;

[VCCR, supra, 21 U.S.T. at 102.]

The purpose of such notice is to allow the consulate to

determine whether to provide assistance to its citizen. Under

Article 5 of the VCCR, such assistance could include:

(a) protecting in the receiving State the
interests of the sending State and of its
nationals, both individuals and bodies

5
P.D. testified at trial that Cape Verde would grant S.D.
citizenship because he is a citizen there. We need not decide
whether P.D.'s assertion is correct. Even assuming Cape Verde
would grant citizenship to S.D., it is undisputed that she is
also a citizen of the United States.

11 A-5437-14T4
corporate, within the limits permitted by
international law;

. . . .

(e) helping and assisting nationals, both
individuals and bodies corporate, of the
sending State;

. . . .

(h) safeguarding, within the limits imposed
by the laws and regulations of the receiving
State, the interests of minors and other
persons lacking full capacity who are
nationals of the sending State, particularly
where any guardianship or trusteeship is
required with respect to such persons;

(i) subject to the practices and procedures
obtaining in the receiving State,
representing or arranging appropriate
representation for nationals of the sending
State before the tribunals and other
authorities of the receiving State, for the
purpose of obtaining, in accordance with the
laws and regulations of the receiving State,
provisional measures for the preservation of
the rights and interests of these nationals,
where, because of absence or any other
reason, such nationals are unable at the
proper time to assume the defence of their
rights and interests;

(j) transmitting judicial and extra-judicial
documents or executing letters rogatory or
commissions to take evidence for the courts
of the sending State in accordance with
international agreements in force or, in the
absence of such international agreements, in
any other manner compatible with the laws
and regulations of the receiving State;

. . . .

12 A-5437-14T4
 (m) performing any other functions
entrusted to a consular post by the sending
State which are not prohibited by the laws
and regulations of the receiving State or to
which no objection is taken by the receiving
State or which are referred to in the
international agreements in force between
the sending State and the receiving State.

[Id. at 82-85.]

The United States Department of State has issued guidance

on consular notification and access, and has stated that the

Article 37 notice requirements do not apply when the minor

involved in the proceedings is an American citizen, even if the

minor holds dual citizenship from another nation. United States

State Dep't Manual on Consular Notification and Access, at 14,

https://travel.state.gov/content/travel/en/consularnotification.

html (last visited October 10, 2017); Robert G. Spector, The

Vienna Convention on Consular Relations: The Most Neglected

Provision of Int'l Family Law, 22 Transnat'l Law & Contemp.

Problems 643, 649-50 (Fall 2013). We see no reason to interpret

the VCCR in a manner contrary to the interpretation reflected in

the State Department's guidance.

Indeed, courts in other jurisdictions have relied upon the

State Department's guidance on this issue. See In re R.J., 381

S.W.3d 619, 625 (Tex. App. 2012) (noting that under the VCCR,

"the Department was required to notify the Mexican consulate of

the parental termination suit only if the child that is the

13 A-5437-14T4
subject of the suit was a Mexican national," and there was no

evidence that children were Mexican nationals); Melendez v.

State, 4 S.W.3d 437, 441-42 (Tex. App. 1999) ("Because there is

no evidence in the record that Melendez is not a United States

citizen, we cannot conclude that the [VCCR] notice provisions

were triggered in the first instance."). We therefore conclude

that the VCCR did not require consular notice of the 2012 abuse

or neglect proceedings involving S.D.

However, even if the VCCR required notice of those

proceedings, P.D. has not shown that he was prejudiced by the

lack of such notice. See In re Adoption of Peggy, 767 N.E.2d 29,

38 n.12 (Mass.) (noting that consular notice regarding custody

proceedings may have been appropriate, but the consulate was

aware of the proceedings, and did not assert an interest in the

case; therefore, the authorities' failure to provide notice did

not change the outcome of the case), cert. denied, sub nom.

S.T. v. Mass. Dept. of Soc. Servs., 537 U.S. 1020, 123 S. Ct.

540, 154 L. Ed. 2d 428 (2002); In re Antonio O., 784 N.W.2d 457,

466-67 (Neb. Ct. App. 2010) (finding that failure to comply with

VCCR caused no prejudice and did not deprive father of due

process).

We note that the trial court appointed a law guardian to

represent S.D. in the abuse or neglect proceedings. N.J.S.A.

14 A-5437-14T4
9:6-8.23. Thus, S.D. had legal representation in those

proceedings, notwithstanding the absence of consular notice.

Furthermore, P.D. presented no evidence showing what additional

action, if any, the Cape Verde consulate would have taken on

S.D.'s behalf, if it had been notified of the proceedings.

P.D. further argues that he was denied due process in the

2012 abuse or neglect proceedings as a result of the lack of

consular notice, which he claims adversely affected his rights

in the guardianship action. The record shows, however, that the

Division notified P.D. of the 2012 proceedings. During those

proceedings, P.D. was living freely in Cape Verde. In addition,

P.D.'s wife is a United States citizen who works for the United

States Department of State in Cape Verde, and his father works

for the Cape Verde government. Therefore, P.D. could have sought

assistance from the Cape Verde consulate on behalf of S.D. or

himself.

Moreover, P.D. could have obtained counsel to represent his

interests in the abuse or neglect proceedings. The record also

reflects that the Division provided P.D. with the paperwork

necessary to obtain assigned counsel for those proceedings. P.D.

did not, however, return the completed application to the

Division until October 2013. Thereafter, counsel was appointed

for P.D., and he had legal representation at the December 23,

15 A-5437-14T4
2014 hearing on the Division's permanency plan. P.D. also was

represented by counsel throughout the subsequent guardianship

proceedings.

Thus, the record shows that P.D. was afforded notice and

the opportunity to be heard in both proceedings. Furthermore,

P.D. also has not shown any prejudice in the guardianship

proceeding resulting from the abuse or neglect matter in which

the judge made no findings regarding P.D. We therefore reject

P.D.'s contention that he was denied due process of law due to

the lack of assistance from the Cape Verde government or the

Cape Verde consulate.

III.

Next, P.D. argues that he was denied the effective

assistance of counsel in the abuse or neglect and guardianship

proceedings. He asserts that the guardianship judgment should be

reversed or, at the very least, the matter remanded to the trial

court for an evidentiary hearing on his ineffective-assistance-

of-counsel claims.

We note that a claim of ineffective assistance of counsel

in an abuse or neglect or a guardianship proceeding must be

raised in a direct appeal from the final judgment in those

matters. R. 5:12-7 ("Claims of ineffective assistance of counsel

shall be raised exclusively on direct appeal of a final judgment

16 A-5437-14T4
or order."); N.J. Div. of Youth & Family Servs. v. B.R., 192

N.J. 301, 311 (2007). P.D. did not file a timely appeal from the

final judgment entered in the abuse or neglect proceedings.

Moreover, we denied P.D.'s motion for leave to file an

appeal in the abuse or neglect matter nunc pro tunc. We also

denied P.D.'s motion to supplement the record on appeal in this

case to include portions of the record in the abuse or neglect

matter. Accordingly, we will only address P.D.'s claim that he

was denied the effective assistance of counsel in the

guardianship action.

To establish the ineffective assistance of counsel, P.D.

must meet the two-prong test established in Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.

2d 674, 693 (1984), and adopted by our Supreme Court for

ineffective-assistance-of-counsel claims asserted in matters

involving the termination of parental rights. B.R., supra, 192

at 308-09.

Therefore, P.D. first must show that his counsel's

performance was deficient in that it "fell below an objective

standard of reasonableness." Strickland, supra, 466 U.S. at 688,

690, 104 S. Ct. at 2064, 2066, 80 L. Ed. 2d at 693, 695. He also

must establish that he was prejudiced by showing that there is a

"reasonable probability that, but for counsel's unprofessional

17 A-5437-14T4
errors, the result of the proceeding would have been different."

Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

We are convinced that the existing record is sufficient to

resolve P.D.'s claims, and a remand to the trial court is not

necessary. We are also convinced that P.D.'s claims of

ineffective assistance of counsel fail because he has not

established both prongs of the Strickland test.

P.D. claims he was denied the effective assistance of

counsel because his attorney allegedly lacked sufficient

knowledge of the VCCR. Even if his attorney was not sufficiently

familiar with the VCCR, P.D. has not shown he was prejudiced

thereby. As we have explained, consular notice under the VCCR

was not required with regard to the abuse or neglect proceedings

involving S.D. because she is an American citizen. The same is

true regarding the guardianship action.

P.D. also claims his attorney should have sought dismissal

of the Division's guardianship complaint based on N.J.S.A.

30:4C-15.2, which provides that "the final hearing for

guardianship shall be held within three months from the date the

petition is filed[.]" P.D. has not shown, however, that he was

prejudiced by counsel's failure to seek dismissal of the

complaint pursuant to the statute.

18 A-5437-14T4
 Even if the court had dismissed the petition on this basis,

the dismissal would have been without prejudice and the Division

could have filed a new complaint seeking to terminate P.D.'s

parental rights to S.D. Thus, P.D. has not shown that the result

here would have been different if his attorney had filed a

motion to dismiss the Division's complaint pursuant to N.J.S.A.

30:4C-15.2.

P.D. further alleges that his attorney was ineffective

because he did not object when Dr. Weitz, the Division's expert,

interviewed him on the telephone. P.D. also claims his attorney

was ineffective because he failed to object to Dr. Weitz's

testimony because she did not perform an in-person psychological

evaluation of him.

These arguments are entirely without merit. Psychological

evaluations are often performed in termination-of-parental-

rights litigation. Because P.D. had been deported and was living

in Cape Verde, Dr. Weitz could only speak with him on the phone.

If P.D.'s counsel had objected to the call, the court would have

found no merit in the objection.

Moreover, P.D.'s counsel could not have objected to Dr.

Weitz's report on the ground that she had not performed a

psychological evaluation of him. There was no basis for such an

objection. At trial, Dr. Weitz testified that she could not give

19 A-5437-14T4
an opinion on P.D.'s fitness as a parent because she had not

been able to perform a psychological evaluation of him.

P.D. also claims his attorney was ineffective because he

did not object to the introduction of evidence regarding his

criminal record. He contends his attorney should have insisted

that the State present certified copies of documents pertaining

to his criminal convictions. Even if P.D.'s attorney erred by

failing to object on this basis, P.D. has not shown that he was

prejudiced by the error.

P.D. does not dispute the accuracy of the facts presented

concerning his criminal record. Indeed, at trial, P.D.

acknowledged his prior conviction on a drug charge, the

imposition of a probationary term for that conviction, his

violation of probation, the charge of aggravated assault, and

his subsequent incarceration.

In addition, P.D. alleges his attorney was ineffective

because he allegedly provided lackluster opening and closing

statements. He also alleges his attorney did not sufficiently

challenge the Division's evidence. The record does not support

these claims. The record shows that defense counsel worked

diligently on P.D.'s behalf and provided strong advocacy for

him. P.D. has not shown that he was prejudiced by his attorney's

opening and closing statements. He also has not established that

20 A-5437-14T4
the result in this matter would have been different if his

attorney had been more forceful in challenging the Division's

evidence.

We therefore conclude that P.D. has not established that he

was denied the effective assistance of counsel in the

guardianship proceedings.

IV.

P.D. argues that the guardianship judgment should be

reversed because the trial judge's findings of fact are not

supported by the record. He contends the Division failed to

present clear and convincing evidence establishing all four

prongs of the test for termination of parental rights.

The scope of our review in an appeal from an order

terminating parental rights is limited. N.J. Div. of Youth &

Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re

Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate

courts must defer to a trial judge's findings of fact if

supported by adequate, substantial, and credible evidence in the

record." Ibid. (citing In re Guardianship of J.T., 269 N.J.

Super. 172, 188 (App. Div. 1993)).

Factual findings of the Family Part "are entitled to

considerable deference." D.W. v. R.W., 212 N.J. 232, 245 (2012)

(citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). However, we

21 A-5437-14T4
give no "special deference" to the court's "interpretation of

the law." Ibid. (citing N.J. Div. of Youth & Family Servs. v.

I.S., 202 N.J. 145, 183 (2010)).

The Division may initiate a petition to terminate parental

rights in the "best interests of the child" and the petition may

be granted if the Division establishes the criteria for

termination of parental rights established in N.J.S.A. 30:4C-

15.1(a) by clear and convincing evidence. In re Guardianship of

K.L.F., 129 N.J. 32, 38 (1992) (citing In re J.C., 129 N.J. 1,

10-11 (1992)).

"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." In re Guardianship of

K.H.O., 161 N.J. 337, 348 (1999).

On appeal, P.D. argues that the judge erred by finding that

the Division established prong one of the best interests test,

which requires the Division to show that "[t]he child's safety,

health or development has been or will continue to be endangered

by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). P.D.

asserts that he never abused or neglected S.D.

We note that "injury to children need not be physical to

give rise to State termination of biological parent-child

22 A-5437-14T4
relationships. Serious and lasting emotional or psychological

harm to children as the result of the action or inaction of

their biological parents can constitute injury sufficient to

authorize the termination of parental rights." K.L.F., supra,

129 N.J. at 44. "A parent's withdrawal of . . . solicitude,

nurture, and care for an extended period of time is in itself a

harm that endangers the health and development of the child." In

re Guardianship of DMH, 161 N.J. 365, 379 (1999).

The trial evidence shows that P.D. made no effort to

maintain a relationship with S.D. after he was incarcerated in

March 2008 and deported in December of that year. The record

supports the judge's finding that P.D. essentially failed to

maintain contact with S.D. after 2008, lacked knowledge of basic

facts about her, and failed to acknowledge that she had

psychological needs. The evidence therefore supports the judge's

determination that S.D.'s safety, health or development have

been harmed by her relationship with P.D.

P.D. next argues that the evidence does not support the

judge's finding that the Division established prong two of the

best interests test. This prong requires the Division to

establish that "[t]he parent is unable or unwilling to eliminate

the harm facing the child or is unable or unwilling to provide a

23 A-5437-14T4
safe and stable home for the child and the delay of permanent

placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2).

The record shows that P.D. failed to take steps to

establish communication between himself and S.D. The record also

shows that P.D. could not provide S.D. with a safe and stable

home because he failed to acknowledge S.D.'s emotional needs and

he did not recognize the possibility that she would require

psychological counseling if sent to live with him in Cape Verde.

Furthermore, Dr. Weitz's unrebutted testimony established that

the child would suffer severe and enduring harm if she were

removed from her resource parent and placed with P.D. There is

sufficient credible evidence in the record to support the

judge's finding on prong two.

P.D. also contends the Division failed to establish prong

three of the test for terminating parental rights. That prong

requires the Division to show that it "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." N.J.S.A. 30:4C-15.1(a)(3). P.D. argues that the

Division failed to make reasonable efforts towards

reunification.

24 A-5437-14T4
 "The diligence of [the Division]'s efforts on behalf of a

parent is not measured by their success." DMH, supra, 161 N.J.

at 393. Therefore, a parent's failure to become an adequate

caretaker for a child "is not determinative of the sufficiency

of [the Division]'s efforts at family reunification[,]" which

"must be assessed against the standard of adequacy in light of

all the circumstances of a given case." Ibid.

As noted previously, the Division took custody of S.D. in

October 2012, when she was six years old. At that time, S.D.

essentially had no relationship with P.D. He had not seen her

since March 2008, when she was eighteen months old. The child's

age also made it difficult for the Division to establish

communications with P.D. In addition, the evidence shows that

S.D. did not want to have any communications with P.D.

The trial court initially ordered the Division to pursue

phone contact, but it later ordered the Division to have P.D.

communicate with S.D. in writing. The Division encouraged P.D.

to send S.D. cards, letters, or gifts, but he declined to do so,

apparently believing that it would be a waste of time and the

resource parents were brainwashing the child. When S.D. sent two

e-mails to P.D., he only answered one of those messages. He

refused to answer the second e-mail, because he believed the

resource parent had written that message.

25 A-5437-14T4
 We therefore conclude that there is sufficient credible

evidence in the record to support the judge's finding that the

Division made reasonable efforts to achieve reunification. The

record supports the judge's determination that the Division

established prong three.

P.D. further argues that the Division failed to establish

prong four of the best interests test. That prong requires the

Division to show that "[t]ermination of parental rights will not

do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). "[T]he

fourth prong of the best interests standard cannot require a

showing that no harm will befall the child as a result of the

severing of biological ties." K.H.O., supra, 161 N.J. at 355.

Therefore, the court must balance the relationships of the

biological parent and the child, and the resource parent and the

child, and determine whether the child will suffer greater harm

from terminating the child's ties with the biological parent

than from permanent disruption of the child's relationship with

the resource parent. N.J. Div. of Youth & Family Servs. v. A.G.,

344 N.J. Super. 418, 435 (App. Div. 2001), certif. denied, 171

N.J. 44 (2002).

Here, the judge found that termination of P.D.'s parental

rights would not do more harm than good. The judge pointed out

that P.D. was a virtual stranger to S.D. The judge found that

26 A-5437-14T4
P.D. had no bond with S.D. and had "in essence abandoned the

child to the care of others." The judge noted that Dr. Weitz had

testified that the child would suffer severe and enduring harm

if she were removed from her resource parent, and P.D. could not

mitigate that harm. Dr. Weitz further testified S.D. would not

suffer any harm if P.D.'s parental rights are terminated. The

judge accepted Dr. Weitz's testimony, which was unrebutted.

In addition, the judge noted that P.D. only planned to

raise S.D. until she reached high-school age. The judge

concluded that P.D. had "not taken affirmative steps" to show

that he wanted to parent S.D. The judge found that "[t]he

child's right to a permanent, safe and stable home must prevail"

over P.D.'s desire for reunification.

On appeal, P.D. argues that the record does not support the

judge's findings. He contends the judge erred by accepting Dr.

Weitz's testimony because the doctor never evaluated him or

witnessed any interaction between him and S.D. He further argues

that all doubts must be resolved in favor of maintaining his

parental rights, and the record lacks any analysis of the

deleterious effects adoption would have on the child.

We are convinced that these arguments are entirely without

merit. We conclude there is sufficient credible evidence in the

record to support the judge's finding that the Division

27 A-5437-14T4
established that termination of P.D.'s parental rights will not

cause more harm than good.

We have considered P.D.'s other contentions, including his

argument that the trial judge's opinion lacks necessary findings

of fact and conclusions of law, and his contention that the

evidence shows he did not abandon his daughter within the

meaning of N.J.S.A. 30:4C-15(e) and N.J.S.A. 30:4C-15.1(b). We

are convinced that these arguments are without sufficient merit

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

Affirmed.

28 A-5437-14T4