DCPP VS. E.M. AND J.B., IN THE MATTER OF THE GUARDIANSHIP OF A.N.M. (FG-11-0003-19, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4865-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

Plaintiff-Respondent,

v.

E.M.,

Defendant,

and

J.B.,

Defendant-Appellant.
_________________________

IN THE MATTER OF THE
GUARDIANSHIP OF A.N.M.,

Minor.
_________________________

Submitted April 1, 2020 — Decided April 23, 2020

Before Judges Whipple, Gooden Brown and Mawla.
 On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Mercer County,
Docket No. FG-11-0003-19.

Jeffrey E. Krakora, Public Defender, attorney for
appellant (Robyn A. Veasey, Deputy Public Defender,
of counsel; Richard A. Foster, Assistant Deputy Public
Defender, on the briefs).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General, of
counsel; Kathryn E. Talbot, Deputy Attorney General,
on the brief).

Jeffrey E. Krakora, Public Defender, Law Guardian,
attorney for minor (Meredith Alexis Pollock, Deputy
Public Defender, of counsel; James Joseph Gross,
Designated Counsel, on the brief).

PER CURIAM

J.B.1, the father of four-year-old A.N.M., appeals from a June 24, 2019

judgment terminating his parental rights. 2 We affirm for the reasons Judge

Wayne J. Forrest expressed in his thorough, and well-written, fifty-five-page

decision.

We summarize the facts, which are set forth in greater detail in the judge's

opinion. The trial in this matter occurred over four days, during which the

1
We utilize initials pursuant to Rule 1:38-3(d)(12).
2
The child's mother, E.M., did not appeal from the judgment.
A-4865-18T3
2
Division of Child Protection and Permanency (Division) presented six

witnesses, including a caseworker, adoption caseworker, caseworker supervisor,

resource supervisor, resource caseworker, and expert psychologist Dr. Amy

Becker-Mattes. E.M. neither appeared for trial, nor presented witnesses, and the

law guardian supported the entry of a judgment of guardianship and presented

no witnesses. J.B., who was incarcerated at the time of trial, attended trial and

testified on his own behalf, as did C.B.-K., his former stepmother. The judge

found all the witnesses testified credibly and J.B. "somewhat credible" because

his testimony lacked knowledge of certain facts. The judge also considered

thirty-one exhibits, which were moved into evidence.

The evidence revealed the Division was involved with the family since

A.N.M.'s birth in December 2015, primarily because of E.M.'s substance abuse

and mental health problems. The evidence overwhelmingly demonstrated J.B.

also had substance abuse problems, committed domestic violence, and was in

and out of incarceration for much of A.N.M.'s life related to drug distribution

charges, car-jacking, and other offenses.

Notwithstanding, during its lengthy involvement, the Division provided

both parents and A.N.M. with a myriad of services, offered visitation with

A.N.M., considered relative placement options, and conducted bonding

A-4865-18T3
3
evaluations. However, as relates to this appeal, J.B. missed several substance

abuse evaluations, treatment sessions, and parenting classes, did not keep in

contact with the Division, and did not request visitation with the child until

October 2018. A.N.M. bonded with her resource parents, who wished to adopt

her.

Judge Forrest concluded the Division clearly and convincingly proved all

four prongs of the best interests test, codified in N.J.S.A. 30:4C-15.1(a). He

found because of J.B.'s chronic criminality, incarceration, and failure to comply

with services and visitation, the Division proved the first prong. When J.B. did

exercise visitation or comply with services in between his incarcerations , the

judge found the evidence showed

before and after the visits with [J.B.], [A.N.M.] had
separation anxiety issues and aggression issues towards
her resource parents . . . Dr. Becker-Mattes testified to
the fact that the resource parents had to take turns
sleeping in [A.N.M.]'s room in order to assist [her] with
her anxiety issues. On November 28, 2018, [J.B.]
attended a substance abuse evaluation and tested
positive for THC [and was] referred to an intake
appointment with Project Free in December 2018[,
which] . . . [he] attended . . . but was discharged due to
his impending incarceration.

....

[A]fter being sentenced . . . on January 11, 2019,
[J.B.] returned to incarceration[, and] . . . at a court

A-4865-18T3
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 ordered mediation, [J.B.] requested that he have
visitation. . . . On April 16, 2019, the Division began
monthly visitation with [J.B.] and [A.N.M.] at his
correctional facility . . . . Before the visit, [A.N.M.]
was upset[,] . . . did not want to get into the
caseworker's vehicle[,] . . . [and] [d]uring the visit,
[she] slept on [J.B.]'s lap. . . .

In January 2019, after a psychological evaluation
of [J.B.], Dr. Becker-Mattes diagnosed him with adult
antisocial behavior[,] . . . [and] explained that
[J.B.]'s . . . diagnosis raises serious concerns about
[J.B.] and his ability to parent appropriately. . . .

Based on . . . [J.B.]'s consistent incarceration,
lack of compliance with services and lack of
involvement with [A.N.M.], [A.N.M.]'s safety, health
or development has been and will continue to be
endangered by a parental relationship with . . .
[J.B.] . . . .

The judge found the Division proved prong two, and concluded J.B. was

unwilling or unable to parent A.N.M. The judge stated:

[J.B.] has a long criminal history and has been
incarcerated repeatedly since [A.N.M.]'s birth[,
and] . . . ha[s] a history of unstable employment and
housing . . . [J.B. is] unwilling or unable to eliminate
the harm that has endangered [A.N.M.]'s health and
development and [has] failed to provide a safe and
stable home for [A.N.M.] At three years old, [A.N.M.]
has separation anxiety and attachment issues with her
resource parents due [to] . . . [J.B.]'s instability and
inconsistency in [her] life. Therefore, further delay in
permanent placement will harm [A.N.M.]

....

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On August 22, 2016, the caseworker met [J.B.] . . .
where [E.M.] was staying . . . [h]owever, [J.B.] knew
about the Division's involvement prior because he was
writted in from prison for the court hearing on July 19,
2016. . . . By the end of 2016 . . . [J.B.] had not
complied with substance abuse referrals or parenting
classes. . . .

Between January and April 2017, the Division
did not know of [J.B.]'s whereabouts and he was not
making himself available to the Division. . . .
Although, [J.B.] was not incarcerated from June 4, 2017
until September 15, 2017, and from October 2017 until
May 4, 2018[,] . . . [J.B.] did not contact the Division
during those periods that he was not incarcerated. . . .

In April 2018, [J.B.]'s paternity was established as to
[A.N.M.,] [and] . . . [J.B. was] served with the
guardianship complaint in July 2018 . . . but did not
contact the Division in regards to [A.N.M.] until the
caseworker contacted and spoke to [J.B.] in September
2018.

....

[J.B.] expects [A.N.M.]'s permanency needs to be put
on hold for two to three more years until he is released
from incarceration.

During [J.B.]'s psychological evaluation . . . he
[informed] [Dr. Becker-Mattes] that he had two other
children who were not in his care[,] . . . was unable to
recount the names or ages of some of his children or
their mothers[,] [and] he did not have his own home . . .
[J.B.] provided . . . a few jobs that he had held, but did
not provide dates or lengths of the employment.

....

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 [I]t is evident that . . . [J.B.] [is] unwilling or unable to
nurture and care for [A.N.M.] . . . [J.B.] has shown this
through his lack of involvement in [A.N.M.]'s life due
to his repeated incarcerations throughout the litigation
and his own unwillingness to engage in services or
visitation. . . . [D]elaying permanent placement will
add to the harm that the child has already suffered, as
[A.N.M.] has been in placement since February 2,
2017[,] and deserves permanency, which can be
achieved with her current resource parents.

The judge concluded the Division proved prong three because it made

reasonable efforts to reunify A.N.M. with her parents and explored alternatives

to a termination of parental rights. In this regard, the judge found

the Division referred [J.B.] to parenting classes,
substance abuse evaluations and treatment, a
psychological and bonding evaluation, supervised
visitation while he was and was not incarcerated, a
DNA paternity test, and conducted a search for [J.B.] in
2017. . . . Additionally, the Division provided [A.N.M.]
with three resource placements, a bonding evaluation
with [J.B.] and her resource parents, regular [minimum
visitation requirements], an Early Intervention
Evaluation, a DNA paternity test with [J.B.],
counseling, and visitation with both of her parents.

....

In April 2019, the Division began providing [J.B.]
visitation with [A.N.M.] at Southern State Correctional
Facility. . . .

....

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 [J.B.] ha[s] failed to sufficiently take advantage of the
Division's offered services, despite the Division's
reasonable efforts to provide them. . . . [J.B.] ha[s] also
not demonstrated the necessary stability or commitment
to care [for his] child . . . .

The judge detailed the Division's efforts to secure a placement with a

relative resource. He noted the Division first contacted C.B.-K. as a possible

placement option for A.N.M., allowed her to attend J.B.'s visits with A.N.M.,

but eventually ruled her out because she lacked the mental health to care for

A.N.M. Additionally, the Division considered J.B.'s girlfriend, A.N.M.'s

paternal and maternal grandmothers, and her maternal great aunt—all of whom

were ruled out because they were unwilling or unable to care for her.

The judge concluded the Division proved prong four and that termination

of parental rights would not do more harm than good because the child was

bonded to her resource parents, who could ameliorate the harm caused by

severance of the parental relationship. Moreover, the judge found

there is no realistic likelihood that . . . [J.B.] will be
able to safely and appropriately care for [A.N.M.] now
or in the foreseeable future. . . . [J.B.] has been
repeatedly incarcerated since [A.N.M.]'s birth, and did
not start visiting with [A.N.M.] until October 2018.

. . . Despite being out of incarceration on multiple
occasions in 2017 and 2018, [J.B.] did not make himself
available for visitation with [A.N.M.] prior to October
2018.

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 . . . [J.B. is] unable to provide [A.N.M.] with a safe and
stable home and the permanency she so desperately
needs and deserves. The termination of the parental
rights of . . . [J.B.] would certainly not result in more
harm than good for the child. Based on all the evidence
and testimony presented, there is no probable
expectation in the ability of . . . [J.B.] to make the
changes necessary to provide [A.N.M.] with
permanency given [his] untreated substance abuse
issues, inability to obtain stable housing and
employment, lack of involvement in [his] daughter's
life and [J.B.]'s incarcerations.

On appeal, J.B. raises the following points for our consideration:

I. THE TRIAL COURT ERRED IN RULING THAT
EACH PRONG OF N.J.S.A. 30:4C-15.1(a) HAD
BEEN SATISFIED IN THIS CASE, AND THE
TERMINATION OF THIS APPELLANT FATHER'S
PARENTAL RIGHTS AS TO HIS DAUGHTER
MUST BE REVERSED.

A. THE TRIAL COURT ERRED IN FINDING THAT
THE PARENTAL RELATIONSHIP WOULD CAUSE
ENDURING HARM OR RISK OF HARM TO THE
CHILD, BECAUSE DCPP'S EVIDENCE FAILED TO
ESTABLISH ANY CAUSAL LINK BETWEEN
WILLFUL ACTS OR OMISSIONS OF THIS FATHER
AND ANY HARM OR RISK TO HIS DAUGHTER.

B. THE TRIAL COURT ERRED IN FINDING THAT
THE FATHER WAS UNWILLING OR UNABLE TO
CEASE CAUSING HARM TO HIS DAUGHTER,
SINCE NO ENDURING HARM OR RISK HAD BEEN
ENGENDERED IN THE FIRST PLACE, AND THE
DIVISION FAILED TO PROVIDE THIS FATHER
ANY MEANS TO EVINCE HIS WILLINGNESS AND
ABILITY IN ANY CASE.

A-4865-18T3
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 C. THE TRIAL COURT ERRED IN FINDING THAT
DCPP HAD SATISFIED THE THIRD PRONG, AS
DCPP'S WILLFUL AND UNEXPLAINED DELAY IN
IDENTIFYING AND ASSESSING AVAILABLE
RELATIVES UNDERMINED THE COURT'S
ABILITY TO MAKE A FULL AND VALID
CONSIDERATION OF EVERY ALTERNATIVE TO
TERMINATION, AND THE COURT ITSELF
EFFECTIVELY AND IMPROPERLY RELIEVED
DCPP OF ITS REASONABLE-EFFORTS
OBLIGATION TOWARD J.B. AS AN
INCARCERATED PARENT.

D. THE TRIAL COURT'S FINDING THAT
TERMINATION OF PARENTAL RIGHTS WOULD
NOT DO MORE HARM THAN GOOD IS
UNSUPPORTABLE AS A MATTER OF LAW,
BECAUSE THE COURT ERRED IN FINDING THAT
THE OTHER STATUTORY PRONGS HAD BEEN
SATISFIED.

Having reviewed the record, we conclude these arguments are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We add only these comments.

In striking a balance between a parent's constitutional rights and a child's

fundamental needs, courts employ the four-part guardianship test articulated in

N.J. Div.of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and

codified as N.J.S.A. 30:4C-15.1(a), which states:

The division shall initiate a petition to terminate
parental rights on the grounds of the "best interests of
the child" pursuant to subsection (c) of section 15 of

A-4865-18T3
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 P.L. 1951, c. 138 (C. 30:4C-15) if the following
standards are met:

(1) The child's safety, health or development has been
or will continue to be endangered by the parental
relationship;

(2) The parent is unwilling or unable to eliminate the
harm facing the child or is unable or unwilling to
provide a safe and stable home for the child and the
delay of permanent placement will add to the harm.
Such harm may include evidence that separating the
child from his resource family parents would cause
serious and enduring emotional or psychological harm
to the child;

(3) The division has made reasonable efforts to provide
services to help the parent correct the circumstances
which led to the child's placement outside the home and
the court has considered alternatives to termination of
parental rights; and

(4) Termination of parental rights will not do more
harm than good.

In their application, the four factors above "'are not discrete and separate, but

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

identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. I.S.,

202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L.,

191 N.J. 596, 606-07 (2007)).

In reviewing Judge Forrest's decision, we must defer to his factual

findings unless they "'went so wide of the mark that a mistake must have been

A-4865-18T3
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made.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)

(citation omitted). So long as "they are 'supported by adequate, substantial and

credible evidence,'" a trial judge's factual findings will not be disturbed on

appeal. In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)

(citation omitted). We owe special deference to the trial judge's expertise in

handling family issues. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).

Having reviewed the record, we conclude the judge's factual findings are

based on sufficient credible evidence, and in light of those findings, his legal

conclusions are unassailable. The record amply supports his decision that

termination of J.B.'s parental rights is in A.N.M.'s best interests.

Affirmed.

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