                                      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                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-1014-18T3
                                                                     A-1015-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

S.C.M. and O.D.M.,

     Defendants-Appellants/
     Cross-Respondents.
________________________________

IN THE MATTER OF THE
GUARDIANSHIP OF E.M.M., a Minor,

          Respondent/Cross-Appellant,

and

O.D.M., JR.,

     a Minor.
________________________________

                    Argued January 29, 2020 – Decided February 6, 2020
        Before Judges Haas, Mayer and Enright.

        On appeal from the Superior Court of New Jersey,
        Chancery Division, Family Part, Essex County, Docket
        No. FG-07-0083-18.

        Ruth Ann Harrigan, Designated Counsel, argued the
        cause for appellant/cross-respondent S.C.M. (Joseph E.
        Krakora, Public Defender, attorney; Robyn A. Veasey,
        Deputy Public Defender, of counsel; Ruth Ann
        Harrigan, on the briefs).

        Kathleen Ann Gallagher, Designated Counsel, argued
        the cause for appellant/cross-respondent O.D.M.
        (Joseph E. Krakora, Public Defender, attorney; Robyn
        A. Veasey, Deputy Public Defender, of counsel;
        Kathleen Ann Gallagher, on the briefs).

        Cory Hadley Cassar, Designated Counsel, argued the
        cause for respondent/cross-appellant (Joseph E.
        Krakora, Public Defender, Law Guardian, attorney;
        Meredith Alexis Pollock, Deputy Public Defender, of
        counsel; Cory Hadley Cassar, on the briefs).

        Casey Jonathan Woodruff, Deputy Attorney General,
        argued the cause for respondent (Gurbir S. Grewal,
        Attorney General, attorney; Jane C. Schuster, Assistant
        Attorney General, of counsel; Casey Jonathan
        Woodruff, on the briefs).

        Todd S. Wilson, Designated Counsel, argued the cause
        for minor (Joseph E. Krakora, Public Defender, Law
        Guardian, attorney; Meredith Alexis Pollock, Deputy
        Public Defender, of counsel; Todd S. Wilson, on the
        brief).

PER CURIAM


                                                                  A-1014-18T3
                                  2
      Defendants O.D.M. and S.C.M. appeal from an October 22, 2018

judgment of guardianship terminating their parental rights to their biological

children, Owen and Eric. 1       O.D.M. collaterally argues the trial court's

termination flowed, in part, from an order dated October 22, 2014, which

wrongfully relieved the New Jersey Division of Child Protection and

Permanency (Division) of the requirement to offer him services. We affirm,

substantially for the reasons set forth in Judge James R. Paganelli's cogent,

ninety-five-page written opinion of October 9, 2018.

      We will not recite in detail the history of the interactions between the

Division and defendants. Instead, we incorporate by reference the trial judge's

extensive factual findings and legal conclusions. We add the following

comments.

      Owen was born in 2006 and Eric was born in 2009. The children were

removed from S.C.M.'s care in November 2012, due to concerns over S.C.M.'s

mental health. Since O.D.M. was in prison at the time of the removal, the

children were placed in a non-relative foster home.




1
  We use fictitious names for the children and initials for the parents to protect
the privacy of the parties and minors involved in this matter.
                                                                          A-1014-18T3
                                        3
      Reportedly, both children exhibited significant behavioral issues while in

placement. Owen was diagnosed with Oppositional Defiant Disorder (ODD);

Eric was diagnosed with Attention Deficit/Hyperactivity Disorder, as well as

ODD; and both children purportedly engaged in "sexualized behavior." By the

time the 2018 guardianship trial commenced,2 Owen resided in a therapeutic

foster home and was scheduled to step down to a resource home, whereas Eric

resided in a separate residential treatment facility.

      At the guardianship trial, the Division offered the testimony of an

adoption caseworker, as well as expert testimony from Dr. Peter DeNigris and

Dr. Zachary Yeoman. No expert or fact witness was presented by defendants or

the children's Law Guardian, although the Law Guardian opposed the Division's

plan for termination of defendants' parental rights.3 Judge Paganelli found each

of the Division's witnesses credible.




2
 The 2018 guardianship action was preceded by a 2015 guardianship action, as
well as an abuse and neglect action.
3
  After the guardianship trial ended, Owen was assigned a new Law Guardian.
We granted Owen's Law Guardian the right to withdraw his cross-appeal as well
as his cross-appellate brief, and leave to file a respondent's brief, based on his
representation that Owen was placed in an adoptive home and now wishes to be
adopted. Eric's Law Guardian has not withdrawn his cross-appeal, as Eric
remains opposed to the termination of his parents' rights.
                                                                          A-1014-18T3
                                         4
      Dr. DeNigris supported the Division's plan for termination of S.C.M.'s

parental rights. He found S.C.M.'s chronic mental illness impaired her ability

to safely parent and she lacked insight into the factors preventing her from being

a safe and stable parent. S.C.M. was hospitalized in February and March 2017

after she reported hearing voices and having paranoid thoughts. She continued

experiencing hallucinations in September and November 2017 and needed to be

stabilized on medication. Her psychological testing results confirmed the extent

of her mental health issues and her elevated risk for child abuse.

      Dr. DeNigris opined that S.C.M.'s continued use of marijuana impaired

her judgment, particularly if used in conjunction with her psychotropic

medication. Further, he testified that between the time he evaluated S.C.M. in

2015 and 2018, she had been evicted from her home and moved a number of

times, reflecting her increased instability.    He concluded S.C.M. had not

maintained her previous progress and was unfit to parent her sons.

      Dr. Yeoman evaluated O.D.M. in 2018 and concluded O.D.M. would not

be able to independently parent his sons in the foreseeable future. Dr. Yeoman's

primary concern was that O.D.M. lacked a consistent and sustained parental

relationship with his sons, due to his criminal behavior and lengthy periods of

incarceration. O.D.M. even admitted to Dr. Yeoman that he "does not know his


                                                                          A-1014-18T3
                                        5
children and his children do not know him." Dr. Yeoman also opined that

O.D.M.'s "long-term substantial addiction" posed a significant risk that O.D.M.

would relapse once he was released from custody, particularly because he never

underwent treatment for his addiction.     Further, Dr. Yeoman reported that

O.D.M.'s history of criminal behavior and incarceration presented a substantial

risk of future harm to his children and demonstrated O.D.M.'s poor judgment.

Dr. Yeoman added that O.D.M. lacked an understanding of his children's special

needs. Therefore, Dr. Yeoman supported the Division's plan for termination of

O.D.M.'s parental rights.

      The adoption caseworker testified that, notwithstanding the children's

special needs, he believed the Division could locate an adoptive home for each

child. According to this caseworker, if the defendants' parental rights were

terminated, the "pool of potential placements for [the children] would expand."

      Judge Paganelli summarized the evidence presented at trial. Referencing

the Division's efforts over a six-year period to provide defendants with various

services, and aware no permanent placement was available to either child at that

time, the judge found the Division proved all four prongs of the best interests

test by clear and convincing evidence, N.J.S.A. 30:4C-15.1(a). Therefore, he




                                                                        A-1014-18T3
                                       6
determined termination of defendants' parental rights was in their children's best

interests.

      Judge Paganelli credited Dr. DeNigris' testimony that S.C.M.'s chronic

mental illness, which had repeatedly resulted in her hospitalizations, impaired

her ability to safely parent. Further, the judge found S.C.M. failed to maintain

adequate housing, lacked insight into her children's needs, and was unable to

consistently treat her mental health and substance abuse issues.

      After reviewing Dr. Yeoman's testimony regarding O.D.M., the judge

concluded O.D.M. could not independently parent in the foreseeable future and

that the children would not suffer harm if their relationship with O.D.M. was

severed. Further, the judge found the Division engaged O.D.M. in reunification

services, despite his "multiple incarcerations" 4 and his "refusal to participate in

services."   Judge Paganelli noted the Division scheduled psychological

valuations, visitation, and relative assessments, 5 that O.D.M. participated in

visitation when he was not incarcerated, and the Division scheduled him for an



4
  O.D.M. reported he was incarcerated five times between 2006 to 2009, 2010
to 2014, and October 2016 to the present.
5
  At the time of the guardianship trial, the assessment of O.D.M.'s sister as a
potential resource was pending because she informed the Division she was
planning to move "soon." Thus, the Division needed to assess her new home.
                                                                            A-1014-18T3
                                         7
evaluation with Dr. DeNigris, which he failed to attend. Moreover, the judge

found O.D.M. would not be released from prison until 2020, that he had no plan

for employment, made no attempt to interact with the children through phone

calls, letters, or any other manner for years, and admitted to Dr. Yeoman that he

last saw the children in September 2015.

      Mindful of the October 22, 2014 order relieving the Division of the

requirement to offer O.D.M. services, Judge Paganelli found O.D.M.

"unequivocally indicated that he was not planning for his children.           This

declaration was noted in several court orders." Judge Paganelli further observed

that even after the Division was relieved of referring O.D.M. for services,

O.D.M. appeared in court, but "never sought relief from the court's order or even

indicated a change in his plan for the children." We note the October 22, 2014

order only relieved the Division of the obligation to provide services "until

[O.D.M.] comes forward and requests services." There is no suggestion in the

record that O.D.M. contacted the Division after October 2014 to request

services, yet he was represented prior to, and during, the 2018 guardianship trial.

      The reasonableness of the Division's efforts "is not measured by their

success." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). Instead, the

Division's efforts must be viewed "with reference to the circumstances of the


                                                                           A-1014-18T3
                                        8
individual case before the court, including the parent's active participation in the

reunification effort." Id. at 390. Here, Judge Paganelli found O.D.M. failed to

actively participate in the reunification effort and S.C.M. was unable to sustain

any progress toward reunification, despite the Division's efforts to provide both

parties with services. The record overwhelmingly supports the judge's findings.

      Although O.D.M. argues the judge's decision to terminate his parental

rights must be reversed because he was deprived of due process while without

counsel, we are not persuaded. O.D.M. does not dispute he refused to complete

paperwork to secure counsel before the 2018 guardianship action commenced.

Also, he admits the Division provided services to him when he was not

incarcerated, and that he was represented during the guardianship trial. Further,

the October 22, 2014 order only relieved the Division of providing him with

services until O.D.M. requested same. O.D.M. neither claims he requested

services from the Division after the entry of this order, nor does he contest Judge

Paganelli's finding that he made no attempt to contact or see the children after

September 2015.

      O.D.M. cites to N.J. Div. of Child Prot. & Permanency v. R.L.M., 236

N.J. 123 (2018) and asserts his waiver of counsel prior to the guardianship trial

was not clear and unequivocal. We note N.J.S.A. 30:4C-15.4(a) requires that:


                                                                            A-1014-18T3
                                         9
            [i]n any action concerning the termination of parental
            rights . . . the court shall provide the respondent parent
            with notice of the right to retain and consult with legal
            counsel. If the parent appears before the court, is
            indigent, and requests counsel, the court shall appoint
            the Office of the Public Defender to represent the
            parent.

      Contrary to O.D.M.'s contentions, representation in a guardianship action

is not compulsory. In fact, the R.L.M. Court noted that "[t]here is [] nothing

mandatory about the statute's discussion of the assignment of counsel; if an

indigent parent does not apply for an assignment, no attorney will be appointed

to act on his or her behalf." R.L.M., 236 N.J. at 148 (citing N.J.S.A. 30:4C-

15.4(a)). Here, O.D.M. was advised of his right to counsel and refused to

complete the paperwork necessary to obtain a public defender. Still, he received

the benefit of legal representation in the months leading up to, and throughout,

the guardianship trial.   Under these circumstances, O.D.M.'s due process

argument fails.

      Our review of the trial judge's decision is limited.      We defer to his

expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 413 (1998),

and we are bound by his factual findings so long as they are supported by

sufficient credible evidence. N.J. Div. of Youth & Fam. Servs. v. M.M., 189

N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188


                                                                         A-1014-18T3
                                       10
(App. Div. 1993)). Applying these principles, we conclude Judge Paganelli's

factual findings are fully supported by the record and, in light of those facts, his

legal conclusions are unassailable.

      To the extent we have not addressed other arguments raised by the

defendants or Eric, we find they are without sufficient merit to warrant

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

        Affirmed.




                                                                            A-1014-18T3
                                        11
