RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0957-16T4
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
J.M.,
Defendant,
and
F.A.,
Defendant-Appellant.
________________________________
IN THE MATTER OF THE
GUARDIANSHIP OF F.A. and K.A.,
Minors.
________________________________
Submitted October 17, 2018 – Decided November 9, 2018
Before Judges Fuentes, Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FG-19-0026-14.
Joseph E. Krakora, Public Defender, attorney for
appellant (John A. Albright, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jason W. Rockwell, Assistant Attorney
General, of counsel; Sara M. Gregory, Deputy Attorney
General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian,
attorney for minors (Danielle Ruiz, Designated
Counsel, on the brief).
PER CURIAM
Defendant F.A., who represented himself at trial with appointed stand-by
counsel, appeals from the final judgment terminating his parental rights to two
of his children, Felix, now eleven years old, and Kayla, now almost ten.1 He
contends the Division of Child Protection and Permanency failed to prove each
of the four prongs of the best interests standard of N.J.S.A. 30:4C-15.1(a)(1)-
(4) by clear and convincing evidence. The Law Guardian joins with the Division
in urging we affirm the judgment. Having considered defendant's arguments in
1
These names are fictitious to protect the children's identities.
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2
light of the record and controlling law, we affirm the termination of his parental
rights to Felix and Kayla.
The facts are fully set forth in Judge Wright's comprehensive twenty-nine
page opinion, and need not be repeated here. We note only that the Division
removed Felix and Kayla in 2013 from the home F.A. shared with the children's
mother, J.M., after both had been arrested for drug offenses and J.M. tested
positive for opiates. J.M. voluntarily surrendered her parental rights to these
children before trial in 2015 in order to permit her parents to adopt them.
Accordingly, the Division proceeded against F.A. alone. At the time of trial,
F.A. had been in jail for over a year awaiting trial on charges of first-degree
bank robbery.
In addition to the testimony of the case workers and experts called by the
Division and the Law Guardian, the court heard from several other witnesses,
including two of J.M.'s children from a prior marriage, a seventeen-year-old
daughter called by the Division and a sixteen-year-old son called by F.A. Felix,
then eight-years-old, testified in camera.
J.M.'s older children, who spent three or four days a week and every other
weekend in their mother and F.A.'s home over several years, painted a picture
of an increasingly chaotic environment following, first their mother's and then,
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3
F.A.'s descent into heroin use. J.M.'s older daughter described finding needles
and glassine envelopes with "little fish on them" stamped with the words "red
funeral or dead funeral" all over the house. She recalled her mother and F.A.
locking themselves in the bathroom or their bedroom while Felix and Kayla
banged on the door begging to be let in, only to emerge altered and unable to
care for the preschoolers.
Both of J.M.'s older children testified they tried to pick up the slack,
feeding, bathing and comforting their younger half-siblings. But both
acknowledged they would come home from school to find the younger children
playing outside unsupervised, sometimes in the road, and often inappropriately
dressed for the weather. They also related the domestic violence they witnessed,
including loud arguments between their mother and F.A., ending in him pushing
or punching her, and F.A.'s repeated beatings of Felix.
When F.A. asked J.M.'s older daughter on cross-examination whether she
understood the difference between discipline and abuse, the seventeen-year-old
replied:
I do. The difference between discipline and abuse is
discipline is when you're trying to teach your kids . . .
right from wrong. A smack on the hand, a smack on
the butt. Abuse is when you leave marks, when you
leave bruises, when you traumatize the kid so much to
the point where he's afraid of you when you speak.
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Specifically, [Felix]. You know, [Felix] would have
hand marks on his behind, on his back. His arm would
have bruises from the way you grabbed him. That's
abuse. That's — that's not discipline.
J.M.'s son testified that when he was fourteen, he drank and smoked marijuana
with F.A. Although called as F.A.'s witness and emotional about past fishing
trips and bike rides, the boy confirmed his sister's account of his mother's and
F.A.'s drug use and F.A.'s frequent beatings of Felix.
The Law Guardian's expert, Frank Dyer, testified to the psychological
evaluation he conducted of F.A. and the bonding assessment he performed of
F.A. with Felix and Kayla, as well as the bonding assessment he conducted of
the children with their maternal grandparents, with whom they were then living.
Dr. Dyer testified to his opinion that F.A. "has a prominent antisocial dimension
to his personality" and "a lower than normative threshold for aggression." He
explained it was F.A.'s
position that he has really done nothing wrong, nothing
blame-worthy; that the children were removed for
unjust reasons; that he has been wrongly accused of a
number of offenses, even offenses for which he,
ultimately, served jail or prison time; and that, in a
sense, he is a victim in this whole affair, without taking
any sort of blame or acknowledging his sort of
responsibility for the impact of his behavior on others.
Dr. Dyer opined that F.A.'s
A-0957-16T4
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degree of denial far and away exceeds the normal
degree of denial found in individuals who have an
antisocial aspect to their personality, and that this
degree of blatant denial, in the face of overwhelmingly
contradictory evidence, points to this characteristic of
loosely organized, eccentric, obscure, and thought
processes that are not particularly related to reality.
Regarding the bonding assessment he conducted between F.A. and the
children, Dr. Dyer reported that both Felix and Kayla, then seven and five, "were
oppositional and negativistic" toward their father, refusing his offers of physical
affection. Dr. Dyer found no existing bond between the children and their father,
in stark contrast to the warm and loving relationship he observed between the
children and their maternal grandparents. It was Dr. Dyer's opinion that F.A.
"does not possess adequate parenting ability at the present time" because he "is
not able to place the needs of his children above his own needs," "not able to
appreciate the impact that his behavior has had on them; and that his
characteristic irresponsibility, which relates to the antisocial dimension of his
personality" the doctor "assessed, would prevent [F.A.] from being able to meet
their needs in any kind of consistent manner."
Dr. Dyer concluded by testifying that the children would not suffer any
harm by the court's termination of F.A.'s parental rights, and that, instead, it
would be a "net positive" for both children. Removing them, however, from the
A-0957-16T4
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loving and stable home of their grandparents would, in his view, result in severe
long-term harm to both Felix and Kayla. Dr. Dyer dismissed F.A.'s allegations
that the children had been coached, describing "the reactions of the two
children" to F.A. to be "at the extreme negative end" of all the parental rights
cases in which he had been involved. He attributed the children's reactions to
their previous attachment to F.A., explaining he "was once a hero to these
children." F.A.'s heroin addiction, however, extinguished the children's good
feelings, and his resultant unreliability and mistreatment of them led to their
becoming "emotionally disengaged."
Dr. Herschman, the Division's expert, echoed Dr. Dyer's views of F.A.
and the bond between the children and their grandparents. Dr. Herschman,
however, did not conduct a bonding assessment of F.A. and his children because
she was scheduled to do so after Dr. Dyer. Given the very negative reaction of
the children to F.A. during Dr. Dyer's bonding assessment, she and the Division
determined it was not in the children's best interests to subject them to another
session with their father so soon thereafter. She testified in response to cross-
examination by F.A. that a kinship legal guardianship would not be in the
children's best interest because of their "strong need for permanency."
A-0957-16T4
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F.A. testified in his own behalf. He claimed he used heroin from 2000
until 2005, shortly before he met J.M., but did not use again until after the
Division removed the children in 2013. He claimed he was a good father from
when Felix and Kayla were born through their removal in 2013, that he never
consumed drugs in their presence or beat them and always provided them a safe
home environment. He testified the services the Division provided were
directed at providing him parenting skills, which he did not need as he was
already a capable parent, and that he was refused drug treatment because of his
inability to get a ride to two sessions.
As to his alleged drug use, F.A. acknowledged a hair follicle test he took
several months after the children were removed was positive, but claimed it did
not prove he had ever used drugs while the children were in his care. He
maintained the allegations that he used drugs while the children lived with him
and beat Felix were manufactured for trial. He posited the children testified
against him because they, wrongly, blame him for their mother's heroin
addiction.
F.A. acknowledged his seven prior indictable convictions, dating from
2000 to 2008, and testified on cross-examination that he expected the seven
indictments he was then facing would be resolved within a year, thus permitting
A-0957-16T4
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him to resume care of Felix and Kayla. Noting his repeated request that the
children's maternal grandparents assume custody of the children in a kinship
legal guardianship, F.A. asserted "[t]here's no difference between them staying
with their grandparents in permanent custody or them staying with them in a
KLG until we [F.A. and J.M.] are able to take the children back."
Applying the statutory factors, N.J.S.A. 30:4C-15.1(a)(1)-(4), to the facts
adduced at trial, Judge Wright entered a judgment terminating F.A.'s parental
rights. The judge concluded there was no question but that F.A.'s "criminal
activity and ongoing incarceration" as well as "his ongoing heroin addiction"
pose a significant danger to Felix and Kayla's health and development. The
judge found F.A. had not been able to care for either child for a considerable
period and even if released in the near future, an unlikely prospect, could not do
so because of his utter failure to acknowledge the children's needs or understand
"their fear of him and desire to be with their maternal grandparents."
Judge Wright found F.A. remains "in significant denial regarding the
impact his substance abuse, physical abuse and criminal behavior have on his
children." He concluded F.A. was unable and unwilling to abate the harm he
caused Felix and Kayla, noting his refusal to engage in the services the Division
offered or get the drug treatment he needs. Focusing on the drug treatment
A-0957-16T4
9
offered by the Division, the judge noted F.A. "sought to thwart hair follicle
testing by shaving all the hair from his body prior to the scheduled test" and
attended only one session of the substance abuse counseling the Division
arranged.
The judge noted F.A.'s "testimony was remarkable in that he absolutely
accepts no culpability for, or even recognizes how his behaviors harmed the
children." Relying on the unrebutted opinion of the experts who testified, the
judge concluded F.A. failed to avail himself of the treatment offered because he
"simply does not accept that he has any problems to correct." The judge
accepted the opinion of the experts that delaying resolution was counter to the
permanency the children desperately needed and that KLG was not in the
children's best interests. Again relying on the opinions of the experts, the judge
found further delay would only exacerbate the harm the children had suffered.
He rejected KLG as an option because, besides being contraindicated by the
experts, the maternal grandparents had expressed a willingness to adopt.
Finally, Judge Wright found the Division proved clearly and convincingly
that termination of F.A.'s parental rights will do no harm to Felix and Kayla and
much good. Significantly, the Division's expert found no existing bond between
them and F.A. In contrast, both experts testified that separating the children
A-0957-16T4
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from their maternal grandparents at this point will do them lasting damage. The
judge found that only freeing the children for adoption by their grandparents
will "provide the continuity, stability and consistency these children need."
F.A. appeals, raising the following several arguments under a single point
heading:
THE JUDGMENT OF GUARDIANSHIP AGAINST
F.A. SHOULD BE REVERSED BECAUSE
TERMINATION OF PARENTAL RIGHTS IS NOT
CLEARLY AND CONVINCINGLY IN THE "BEST
INTERESTS" OF F.A. III AND K.A. UNDER N.J.S.A.
30:4C-15.1A.
A. The trial court erred in holding that DCPP proved
the first prong, that F.A. harmed F.A. III, and K.A. or
would continue to endanger them, by clear and
convincing evidence.
1. The lower court erroneously relied
on unpled allegations of physical abuse and
neglect of F.A. III and K.A., of which F.A. had
no advance notice, to support its conclusion that
prong one was satisfied, resulting in a due
process violation.
2. Contrary to the lower court's
conclusion, there was no evidence presented that
F.A. was using heroin before the children's
removal, or that such use harmed the children or
placed them at risk.
3. The lower court erred in relying on
F.A.'s arrests and incarceration as a basis for
termination of his parental rights because it did
A-0957-16T4
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not perform the requisite broad analysis under
N.J. Div. of Youth & Fam. Servs. v. S.A., 382
N.J. Super. 525 (App. Div. 2006).
B. The trial court erred in holding that DCPP proved
the second prong of the "best interests" termination test
by clear and convincing evidence.
C. The trial court erred in holding that DCPP proved
the third prong of the "best interests" termination test
against F.A. by clear and convincing evidence.
1. The court's consideration of kinship
legal guardianship was legally incomplete and
insufficient to establish that it properly
considered alternatives to termination of
parental rights.
a. The court's inquiry into the
statutory KLG factors was utterly
incomplete.
b. Clear and convincing evidence
did not establish that adoption by the
maternal grandparents was "feasible" and
"likely."
2. The record does not clearly and
convincingly establish the reasonableness of
DCPP's efforts to correct the circumstances
which led to the improvident removal of the
children.
D. The trial judge erred in holding that DCPP proved
the fourth prong of the "best interests" termination test,
that termination will not do more harm than good by
clear and convincing evidence.
A-0957-16T4
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We find no merit in those arguments and affirm substantially for the
reasons set forth in Judge Wright's comprehensive written opinion of October
14, 2016.
Affirmed.
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DCPP VS. J.M. AND F.A., IN THE MATTER OF THE GUARDIANSHIP OF F.A. AND K.A. (FG-19-0026-14, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
Combined Opinion