                                     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                                NOT FOR PUBLICATION WITHOUT THE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-5979-17T1

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

         Plaintiff-Respondent,

v.

E.R.,

         Defendant,

and

L.N.A.,

         Defendant-Appellant.


IN THE MATTER OF THE
GUARDIANSHIP OF R.J.C.,

         a Minor.


                   Argued May 1, 2019 - Decided June 17, 2019

                   Before Judges Accurso, Vernoia and Moynihan.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Family Part, Cumberland County,
            Docket No. FG-06-0011-18.

            Ryan Thomas Clark, Designated Counsel, argued the
            cause for appellant (Joseph E. Krakora, Public
            Defender, attorney; Ryan Thomas Clark, on the briefs).

            Amy Melissa Young, Deputy Attorney General, argued
            the cause for respondent (Gurbir S. Grewal, Attorney
            General, attorney; Melissa H. Raksa, Assistant
            Attorney General, of counsel; Amy Melissa Young, on
            the brief).

            Linda Vele Alexander, Designated Counsel, argued the
            cause for minor (Joseph E. Krakora, Public Defender,
            Law Guardian, attorney; Linda Vele Alexander, on the
            brief).

PER CURIAM

      Defendant L.N.A. appeals from a final judgment terminating his parental

rights to his son, R.J.C. (Robby), now three years old. He contends the Division

of Child Protection and Permanency failed to prove the four prongs of the best

interests standard of N.J.S.A. 30:4C-15.1(a)(1) to (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 light of the record and

controlling law, we affirm the termination of his parental rights.




                                                                       A-5979-17T1
                                        2
       Defendant, who has at least nine other children,1 only two with the same

woman, did not have a relationship with E.R., Robby's mother. He does not

financially support any of his offspring and owes, by his own reckoning, over

$140,000 in child support. His rights to three other children have already been

terminated. When asked why under those circumstances he decided "to be . . .

with [E.R.] in a way that there was a chance that she would have a child,"

defendant responded "[s]he's attractive" and he "didn't think it was going to

happen like that," although acknowledging he took no steps to prevent a

pregnancy.

       Defendant also acknowledged he knew E.R. had a drug problem and was

using when they had relations in August 2015. And although defendant was

working as a drug dealer at the time, he claimed he did not supply her with drugs

because "[s]he didn't need drugs from [him]" as "[s]he'd take care of herself."

       Robby tested positive for cocaine at birth in May 2016. The Division

removed him from E.R. in the hospital and placed him with the same resource

family who was caring for, and eventually adopted, Robby's half-brother.2 E.R.


1
    The Division puts the number between nine and twelve.
2
  E.R. has a long history with the Division. She does not have custody of any
of her six children. E.R.'s parental rights to Robby were also terminated in this
proceeding. She has not appealed.
                                                                        A-5979-17T1
                                       3
did not identify defendant as Robby's father. She believed Robby and his half-

brother were full brothers. When paternity testing proved that not the case, E.R.

provided the Division with defendant's name. Defendant was confirmed to be

Robby's father in October 2016. He had by then pleaded guilty to unlawful

possession of a handgun and possession of heroin, for which he is now serving

a five-year prison sentence with three-and-a-half years of parole ineligibility.

      Because defendant was incarcerated, providing services to him was

difficult. He was transferred to three different prisons during the pendency of

the case and did not advise the Division of his transfers. The case worker

testified he had difficulty visiting defendant at one prison, having been denied

entry on at least two occasions.     Defendant had no visitation with Robby,

presumably because of the infant's age. The prison social workers the case

worker contacted to assist in providing services to defendant during his

incarceration advised defendant could not participate in necessary substance

abuse evaluations and treatment owing to where he was housed. Defendant was

wait-listed for several such programs. Defendant did manage to complete a job

training program and a parenting program during his incarceration, and the case

worker provided him pictures of Robby and gave him copies of court reports

and updates. When defendant complained he was not receiving court papers,


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                                        4
the worker sent the documents certified and regular mail and hand-carried them

to defendant.

      Defendant's plan was to have his brother care for Robby until defendant

was released from prison and could assume custody. The brother, however,

visited Robby only five times over the course of seven months and had not seen

him for nine months at the time of trial. When his home was declared unsuitable

for placement, he advised the Division he was not interested in going through

the licensing process but just wanted custody. Although advised by the case

worker he would need to apply to the court for custody, the brother delayed

doing so until just before trial. The Division had by that time ruled him out on

a best interests basis because Robby had been with his resource parents for over

a year. Although scheduled to testify at trial, the brother did not appear on the

appointed day.

      Dr. Linda Jeffrey conducted a psychological evaluation of defendant and

bonding evaluations between Robby and defendant as well as with Robby and

his resource parents. She testified defendant suffered from "a severe and chronic

Adjustment Disorder," marked by a history of being unable "to make and

maintain stable relationships." She found he lacked the emotional maturity "to

engage in rule-governed behavior and role model rule-governed behavior" and


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                                       5
that his history with his other children did not suggest an understanding of basic

child development or the capacity to provide a stable, safe environment for a

child either physically or psychologically. Dr. Jeffrey also diagnosed defendant

with a persistent depressive disorder, which she explained was a chronic

depression which affects one's ability to maintain a positive emotional level and

model for a child how to self-regulate and manage one's emotions.

      Dr. Jeffrey also testified defendant suffered from a mixed personality

disorder, including antisocial, narcissistic, borderline and dependent personality

features marked by a history of antisocial behavior and a record of not

"considering the consequences of his behavior for other people, including his

children." She found his insight and judgment were poor and his substance

abuse disorder would pose problems in caring for a child, both because of its

psychoactive effects and role-modeling substance abuse. Dr. Jeffrey opined

defendant's was a "very deep-seated diagnosis" that would require "a concerted

effort to change behaviors, to control emotions differently, [and] to deal with

issues of developmental responsibility" that would easily take two years of hard

work following defendant's release from prison. She concluded defendant was

"not prepared to provide a minimal level of safe parenting" to Robby at the time

of trial and would not be able to do so in the foreseeable future.


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                                        6
      As to the bonding evaluations, Dr. Jeffrey found no bond between

defendant and Robby, as the evaluation, which took place at the courthouse, was

the first time defendant had ever seen him. As a consequence, she found Robby

would suffer no harm were defendant's rights terminated. In contrast, Dr. Jeffrey

found Robby securely bonded to his resource parents, who described him as a

loveable, pleasant and delightful child. Robby was healthy with no indication

of any serious problems or developmental delays. Dr. Jeffrey observed he was

relaxed and comfortable with his resource parents, offered them spontaneous

affection and "was very vivacious and engaging." She opined that severing

Robby's bond with his resource parents, the only parents he has ever known

having been placed with them two days after his birth, would be "the worst thing

that can happen" and would result in Robby suffering "long-term consequences."

      Defendant testified in his own behalf. He acknowledged he has "sucked"

at being a parent for his many children and "wasn't a good dad." When asked

why it would be different with Robby, defendant replied that he was taking all

his parenting classes and was "on it." He testified he did not want his children

to "grow up and try to be drug dealers" and was motivating them by sending

them letters from prison "telling them which way to go." Defendant testified he

saw no harm befalling Robby from severing his ties to his resource parents,


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                                       7
"[n]one at all." He allowed that Robby "might miss the people" for "[t]hree to

six months, probably" but that his brother, Robby's uncle, would be able to deal

with that.

      After hearing the testimony and the closing arguments of counsel, the

judge placed a decision on the record terminating defendant's rights. The judge

found defendant had endangered his son by not being available to care for him.

Based on Dr. Jeffrey's testimony, which the judge found "very credible," the

judge determined defendant lacked a realistic view of what it would take for him

to abandon his former lifestyle and serve as a safe and effective parent to Robby.

The judge noted defendant's utter lack of comprehension of what removing

Robby from his resource parents would mean to the child. She further found

defendant's plan to have his brother care for Robby until defendant's release

from prison was unrealistic in light of his brother's demonstrated lack of

commitment.

      The judge found the Division's attempts to provide services to defendant

and to arrange for visitation between defendant's brother and Robby were

reasonable and that there was no basis on which the Division could have placed

Robby with his uncle, the only alternative defendant suggested who was willing

to assume custody. The judge found the Division had proved all four prongs of


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                                        8
the best interests standard, N.J.S.A. 30:4C-15.1(a)(1) to (4), by clear and

convincing evidence.     She found the Division was not merely relying on

defendant's incarceration, see N.J. Div. of Youth & Family Servs. v. R.G., 217

N.J. 527, 556 (2014), to establish its case, and that the evidence of harm to this

child from defendant's inability to act as a parent, plan for his future or mitigate

the harm Robby would experience from removing him from his resource parents

was overwhelming. Given the proofs, the judge had no hesitation concluding

that termination of defendant's parental rights would not do more harm than

good. See N.J.S.A. 30:4C-15.1(a)(4).

      Defendant appeals, arguing:

            THE TRIAL COURT’S FINDINGS WERE
            INCOMPLETE AND INADEQUATE TO SUSTAIN A
            JUDGMENT TERMINATING L.N.A.'s PARENTAL
            RIGHTS BY CLEAR AND CONVINCING
            EVIDENCE AS REQUIRED BY N.J.S.A. 30:4C-15
            AND 30:4C-15.1.

                     A. The Trial Court Erred in Finding that DCPP
                Demonstrated by Clear and Convincing Evidence
                that the Son's Health and Development Had Been or
                Will Continue to be Endangered by the Parental
                Relationship under the First Prong Because it did not
                Prove that the Father’s Incarceration Harmed R.J.C.

                     B. The Trial Court Erred in Finding that DCPP
                Demonstrated by Clear and Convincing Evidence
                that L.N.A. was Unwilling or Unable to Eliminate
                the Harm Facing his Son or is Unable or Unwilling

                                                                           A-5979-17T1
                                         9
               to Provide a Safe and Stable Home for him Upon his
               Release from Incarceration or that Any Delay of
               Permanent Placement Will Add to the Harm under
               the Second Prong.

                    C. The Trial Court Erred in Finding that DCPP
               Demonstrated by Clear and Convincing Evidence
               that it has Made Reasonable Efforts to Provide
               Services to Help the Father Correct the
               Circumstances Which Led to his Son's Placement
               Outside the Home Because DCPP did not Prove that
               it Provided a Meaningful Service or a Single Visit
               Between the Father and Son under the Third Prong.

                   D. The Trial Court Erred in Finding that the
               Court Considered Alternatives to Termination
               Where DCPP Refused to Place the Son with his
               Uncle under the Third Prong.

                    E. Trial Court Erred in Finding that DCPP
               Demonstrated by Clear and Convincing Evidence
               that Termination of the Father’s Parental Rights Will
               Not Do More Harm than Good.

      Our review of a trial court's decision to terminate parental rights is limited.

N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We

generally "defer to the factual findings of the trial court because it has the

opportunity to make first-hand credibility judgments about the witnesses who

appear on the stand; it has a 'feel of the case' that can never be realized by a

review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.




                                                                            A-5979-17T1
                                        10
88, 104 (2008) (quoting N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J.

261, 293 (2007)).

      Our review convinces us the judge's findings are amply supported by the

trial testimony. Contrary to defendant's contentions, the judge did not rest her

analysis on the mere fact of defendant's incarceration.       Instead, the judge

appropriately considered his incarceration as one of several factors in her

analysis. See R.G., 217 N.J. at 556-59 (noting that incarceration, though alone

insufficient grounds to terminate parental rights, is one among several factors a

court may consider in a best interests analysis); In re Adoption of Children by

L.A.S., 134 N.J. 127, 135-38 (1993) (same). The court was able to review

defendant's long history with his other children, and how he failed utterly to act

as a parent to any of them when he was not incarcerated.

      Defendant never parented his son, nor any of his son's nine siblings. He

never lived with the child at any point and has never even paid child support for

any of his ten children. He was aware Robby's mother had a long-standing

addiction problem yet did nothing to ensure the child's safety and stability. The

psychological evaluation performed by Dr. Jeffrey detailed defendant's failures

as a parent and the deep-seated personality issues making change both difficult

and unlikely.    Most striking was defendant's failure to appreciate what


                                                                         A-5979-17T1
                                       11
separating Robby from his half-brother and the only parents the boy has ever

known would likely mean for his son, and defendant's blithe assurance that his

brother, who barely visited the child and showed no commitment to his care and

well-being, could easily "deal with that."

      Because this record leaves us no doubt as to the correctness of the judge's

decision to terminate defendant's parental rights to Robby, we affirm the

judgment.

      Affirmed.




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