                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1991-17T1

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

          Plaintiff-Respondent,

v.

A.L.A.,

          Defendant,

and

M.Z.,

     Defendant-Appellant.
________________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF L.A.A.,

     a Minor.
________________________________________

                    Argued October 24, 2018 – Decided November 5, 2018

                    Before Judges Nugent, Reisner, and Mawla.
             On appeal from Superior Court of New Jersey,
             Chancery Division, Family Part, Camden County,
             Docket No. FG-04-0176-17.

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

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

             Linda V. Alexander, Designated Counsel, argued the
             cause for minor (Joseph E. Krakora, Public Defender,
             Law Guardian, attorney; Meredith A. Pollock, Deputy
             Public Defendner, of counsel; Linda V. Alexander, on
             the brief).

PER CURIAM

      Defendant M.Z. appeals from a December 14, 2017 judgment terminating

his parental rights to his son, L.A.A. We affirm.

      The following facts are taken from the record. M.Z. and A.L.A. are the

biological parents of L.A.A., who was born in January 2016, as well as another

child born prior to L.A.A. M.Z. is also the father of four other children from

another relationship. With the exception of L.A.A., M.Z. has surrendered his

parental rights to all of his children.




                                                                      A-1991-17T1
                                          2
      M.Z.'s surrenders came as the result of previous involvement with the

Division of Child Protection and Permanency (Division) and failure to comply

with several recommended services, including anger management, parenting

classes, and inpatient drug treatment and drug screens. The incidents giving rise

to the Division's involvement began in November 2007, when M.Z. was

involved in a domestic violence incident and found in possession of a crack pipe,

causing removal of M.Z.'s four oldest children.         In January 2010, another

domestic violence incident, in which M.Z. employed a hammer, resulted in

another removal. In September 2012, the Division was alerted to issues of

substance abuse and domestic violence between M.Z. and A.L.A. in the presence

of one of the children, resulting in a third removal.

      M.Z. also had a history of criminality, which absented him from L.A.A.'s

life. He has been incarcerated since December 2015, and his earliest release

date is December 2020. As a result, M.Z. has had no contact with L.A.A., never

met the child, and has been incarcerated for the child's entire life.

      The Division continued to receive referrals after M.Z.'s incarceration. In

April 2016, the Division received a referral from the Waterford Township Police

Department regarding an ongoing domestic violence incident involving a verbal

altercation between A.L.A. and her mother, J.M. A.L.A. had been living for


                                                                         A-1991-17T1
                                         3
approximately one month in J.M.'s home with L.A.A., and two of the child's

half-siblings. J.M. requested A.L.A. leave due to her behavior.

      A Division caseworker interviewed A.L.A. at the police station. A.L.A.

reported she and M.Z. had moved to Florida in October 2015, but she moved

back to Philadelphia in December 2015, after M.Z. was incarcerated. A.L.A.

explained her living circumstances had been transient. She lived with friends,

before spending a period of time living in a Philadelphia shelter after L.A.A.'s

birth. In March 2016, A.L.A. moved into her mother's home with L.A.A., who

was then two months old.

      A.L.A. told the caseworker she suffered from multiple psychological

disorders and had not been compliant with her current medication regimen.

When the caseworker questioned J.M., she stated the argument between her and

A.L.A. was only verbal, she had asked A.L.A. to leave the home, and "if a

removal was needed for the baby, she [did not] want to be considered for

placement." A.L.A. and L.A.A. continued to live transiently after leaving J.M.'s

residence.

      In May 2016, A.L.A. brought L.A.A. to the Division office. A.L.A. made

unfounded accusations claiming J.M.'s live-in partner had sexually abused one

of A.L.A.'s children. It was apparent to the caseworker A.L.A. was experiencing


                                                                        A-1991-17T1
                                       4
a mental health episode. The Division became concerned regarding A.L.A.'s

condition and homelessness. As a result, the Division removed L.A.A., and

placed him with his resource mother, J.F.

      The Division filed a complaint under Title 9 and Title 30 for services on

May 5, 2016, naming both parents as defendants. At a hearing on May 19, 2016,

the Division indicated it was actively searching for M.Z., who it understood was

incarcerated in Florida.

      After the removal and commencement of the litigation, J.M. stated she

was unwilling to care for L.A.A. She cited her health, well-being, and the safety

of herself and the two children already in her care.          L.A.A.'s paternal

grandmother, T.Z., was also interviewed by the Division and L.A.A. was

ultimately placed in T.Z.'s home seven days after the removal. However, six

days later, T.Z. returned L.A.A. because she did not want to continue interacting

with A.L.A. Therefore, L.A.A. was returned to the home of his resource parent,

J.F., where he has remained ever since.

      At a July 15, 2016 hearing, the Division advised the court it had located

M.Z. in a Florida prison. The Division also advised M.Z. declined to complete

a paternity test.




                                                                         A-1991-17T1
                                          5
      In December 2016, A.L.A. was fatally struck by a vehicle. After A.L.A.'s

death, the Division contacted J.M. to inquire whether she would serve as a

relative placement for L.A.A. J.M. expressed an interest, and the Division

arranged for visitation to occur twice weekly. The Division also fostered a

relationship between J.M. and J.F. in order to preserve the potential for L.A.A.'s

placement with family.

      In February 2017, M.Z. was appointed counsel. At a permanency hearing

in March 2017, the Division advised its plan was termination of parental rights

followed by adoption by J.M. within one year. The judge rejected the Division's

plan and ordered bonding evaluations "to get a little bit more information."

      At the second permanency hearing held in April 2017, the Division re-

proposed a plan of termination of parental rights followed by adoption, pending

bonding evaluations and expert reports. The judge approved the revised plan.

The Division filed a guardianship complaint on June 2, 2017, and the court

terminated the Title 9 litigation. M.Z. was represented by appointed counsel

during this time and through the initial hearing in the guardianship matter.

      During a case management conference in July 2017, the Division advised

the judge it had difficulty serving M.Z. with the guardianship complaint because

he had moved between correctional facilities in Florida. However, once M.Z.


                                                                          A-1991-17T1
                                        6
was served, the attorney who had previously represented him was reappointed.

Additionally, the caseworker traveled to Florida to meet M.Z. and make

arrangements for his participation in the guardianship proceedings.

      The guardianship trial occurred over two days in November 2017. M.Z.

appeared by telephone.      The Division offered the testimony of forensic

psychologists, Drs. Alan Lee and Lina Jeffrey, and caseworker Tara Lange. J.F.,

J.M., and T.Z. also testified. M.Z. did not.

      Dr. Lee had performed an evaluation of M.Z. in Florida. He testified M.Z.

had an extensive criminal history, including juvenile charges and two prison

terms served as an adult. He also testified M.Z. had admitted he was jailed or

detained approximately twenty other times, and had numerous arrests related to

drugs, thefts, burglary, or domestic violence.

      Dr. Lee concluded M.Z.'s criminal history demonstrated a larger pattern

of propensity for criminality and impulse control problems, antisocial behaviors,

and a substantial risk of recidivism. Dr. Lee also found M.Z.'s history of

polysubstance abuse problematic because he was not fully invested in substance

abuse treatment and thus had not benefitted from it. Based on the psychological

testing conducted by Dr. Lee, he classified M.Z. as having a "cluster of




                                                                         A-1991-17T1
                                        7
antisocial and narcissistic personality traits" which "reflects on his long history

of behavior and attitude problems."

      Dr. Lee concluded M.Z.'s incarceration prevented him from caring for

L.A.A., and his criminal behavior would create an unsafe parenting environment

for the child. Dr. Lee opined M.Z. would not be able to parent L.A.A. because

he lacked any knowledge of parenting and child rearing, and provided erroneous

answers to basic questions regarding a child's common developmental

milestones. Dr. Lee testified M.Z. lacked the ability to parent into the future

because his potential to show any kind of significant lasting changes as a parent

was "poor."

      Dr. Jeffrey performed psychological and bonding evaluations of J.M., her

partner, and L.A.A. She also conducted separate evaluations of J.F. and L.A.A.

      Dr. Jeffrey's diagnostic impression of J.M. indicated she had adjustment

disorder, anxiety, and narcissistic tendencies. She found J.M. defensive and

exhibiting signs of deception throughout the evaluation. She noted J.M.'s "lack

of candor, narcissistic tendencies, . . . lack of personal insight and lack of

empathy." J.M. also indicated she experienced stress and anxiety regarding her

financial situation and her partner's work schedule, but did not explain why she

had been unemployed since 2013.


                                                                           A-1991-17T1
                                        8
        J.M. had also provided a written statement, which gave Dr. Jeffrey

concern.     J.M. explained she called the police when A.L.A. began to act

erratically, in order to protect herself, and her other grandchildren, but not

L.A.A.      Dr. Jeffrey testified this decision showed questionable parental

judgment because it was:

              problematic that [J.M.] indicated that her sense . . .
              [A.L.A.] . . . was off her medication, that she was
              delusional, and that she was at risk of harm. Whereas,
              what was . . . reported[] to the police [w]as not that and
              hence the police did not think that they had the basis
              [to] arrest . . . [A.L.A.].

              I think that the bottom line was the . . . statement "I
              chose to keep myself, [H.Z.] and [J.Z.] 1 safe." She did
              not choose to keep [L.A.A.] safe.

In other words, despite believing that A.L.A. was having a psychotic episode,

J.M. let her leave the house with L.A.A., and did not alert the police to that

danger. Dr. Jeffrey concluded this decision was emblematic of J.M.'s emotional

immaturity, inability to take responsibility, and adequately problem solve.

        Dr. Jeffrey also testified J.M. had a "grandiose sense of self[,]" and placed

her needs above others. She testified that J.M.'s narcissistic tendencies and lack

of empathy impact her ability to parent L.A.A., because she is likely to prioritize



1
    H.Z. and J.Z. are J.M.'s other grandchildren.
                                                                             A-1991-17T1
                                          9
her needs above the child's. Dr. Jeffrey opined "a child's most important role

model[s are] the primary care givers in a child's life. A child's sense of what an

adult is, is derived from their care givers, their parents." Dr. Jeffrey concluded

J.M.'s adjustment disorder impacted her ability to parent because it created a

lack of stability and an inability to serve as a child's role model.

      Dr. Jeffrey also expressed concern regarding J.M.'s intention to parent

with her partner because his answers to questions during the bonding evaluation

demonstrated he lacked any knowledge regarding L.A.A. Dr. Jeffrey testified

that during the bonding evaluation with L.A.A. attended by J.M., her other

grandchildren, and her partner, neither J.M. nor her partner attempted to provide

structure for the children. Instead, both remained in their chairs throughout the

evaluation and J.M. resorted to verbal exhortation to attempt to control the

children.

      Dr. Jeffrey noted "[L.A.A.] did not display any spontaneous affection to

[J.M.]" In the second bonding evaluation, which included only J.M. and L.A.A.,

Dr. Jeffrey noted there was a lack of greater interpersonal interactions indicative

of a bond. She testified J.M.'s behavior indicated she lacked attunement to

L.A.A., and L.A.A. did not display spontaneous affection for J.M. Dr. Jeffrey




                                                                           A-1991-17T1
                                        10
concluded L.A.A. related to J.M. as a "familiar playmate and a pleasant visitor,"

but L.A.A. would not suffer a harm if the relationship were severed.

      The bonding evaluation between L.A.A. and J.F. was quite different. Dr.

Jeffrey's testified J.F. and L.A.A. maintained "good eye contact[,]" and J.F.

provided "gentle yet effective" guidance to L.A.A. She also noted L.A.A. was

relaxed and comfortable with J.F., used her as a "home base," and remained

close in proximity to her as he explored the room. Dr. Jeffrey concluded there

was a bond between J.F. and L.A.A., and a severance of the relationship would

cause him serious harm and hinder his development.

      Dr. Jeffrey testified J.M. would have difficulty mitigating the substantial

harm L.A.A. would suffer if his relationship with J.F. were severed because she

failed to comprehend the nature of the attachment between L.A.A. and J.F. Dr.

Jeffrey found J.M.'s inability to empathize with L.A.A. demonstrated she would

not provide the care and support to adequately ameliorate the harm. Dr. Jeffrey

opined J.F. had become L.A.A.'s "psychological parent."          Therefore, she

concluded that a permanent placement with J.F. was crucial to L.A.A.'s

development.

      J.F.'s testimony corroborated Dr. Jeffrey's findings. She testified L.A.A.

refers to her as "mommy" and has formed relationships with her adult daughter,


                                                                         A-1991-17T1
                                      11
her extended family, neighbors, friends, and members of J.F.'s church. She

expressed an unequivocal desire to adopt L.A.A. and also maintain his

relationship with his blood relatives.

      J.M. and T.Z. both testified they had not offered themselves as placement

options when the case began. J.M. explained she offered herself as placement

option only after A.L.A. died, and T.Z. testified she offered herself as a

placement only after she was made aware of the Division's plan to terminate

parental rights.

      The trial judge rendered a comprehensive oral opinion finding the

Division had proved the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and

convincing evidence, and a termination of parental rights followed by adoption

by J.F. was in L.A.A.'s best interests.       At the outset, the judge noted the

testimony of Drs. Lee and Jeffrey was undisputed. The judge found the experts'

testimony that was credible and corroborated by the facts.

      Regarding prongs one and two, the judge credited Dr. Lee's testimony

M.Z. had a long history of substance abuse and behavioral deficiencies , which

prohibited him from parenting at the time or in the foreseeable future. The judge

noted, although M.Z.'s expected release date from prison was December 2020,




                                                                         A-1991-17T1
                                         12
his drug use and behavioral disorders prevented him from adequately parenting

even if he were released on time.

      With respect to prong three, the judge credited the caseworker's testimony,

and found the Division had met its burden to make reasonable efforts to reunify

the family by offering services to both parents. The judge noted M.Z. had been

provided services by the Division in connection with the removals of his o ther

children, namely, "parenting [classes], anger management, and counseling."

However, the judge found M.Z. had never asked for services after his

incarceration.

      The judge also concluded the Division had satisfied its burden to prove by

clear and convincing evidence there were no alternatives to termination of

parental rights and had assessed relative placements. The judge noted although

the Division is required to assess relative placements, there was no presumption

in favor of placing the child with relatives. Citing to N.J. Div. of Youth &

Family Servs. v. M.F., 357 N.J. Super. 515 (App. Div. 2003), the judge found

"a presumption of custody only exists in favor of a natural parent as opposed to

placement with relatives or foster parents."

      The judge noted it was undisputed J.M. was not interested in caring for

L.A.A. when the Division took emergency custody of him and inquired whether


                                                                         A-1991-17T1
                                      13
she was available for placement. J.M. had allowed L.A.A. to leave with A.L.A.

despite her knowledge of A.L.A.'s housing instability and concerns for the

child's safety. The judge also noted T.Z. took custody of L.A.A. for six days

before giving him up for placement with the resource parent.         The record

indicated neither J.M. nor T.Z. had communicated with the Division for a period

of ten months while L.A.A. was placed with J.F. The judge found these facts

supported the conclusions drawn by Dr. Jeffrey, that J.M. had a sense of

entitlement, self-absorption, and lacked compassion, attunement, and the ability

to mitigate the harm to L.A.A., which would result from severing his

relationship with J.F.

      Notwithstanding, the judge found the Division still arranged for visitation

once J.M. indicated her interest in becoming a placement option for L.A.A. The

judge credited the Division's efforts to preserve the family by securing bonding

and psychological evaluations to determine the viability of a relative placement.

      However, the judge found J.F. was the only viable permanency option for

L.A.A. The judge found she placed L.A.A. interests above her own, and had a

substantial support system and experience caring for foster children. Notably,

although the judge found both J.M. and J.F. reported anxiety and depression




                                                                         A-1991-17T1
                                      14
during their evaluations, she concluded only J.F. was committed to engaging in

counseling and treatment.

      The judge concluded the fourth prong had been met because L.A.A. had

been placed with a stable and nurturing psychological parent. The judge found

L.A.A. had a significant attachment to J.F. and would be harmed by severing the

relationship, which would not meet the statutory goals of ensuring the physical

and psychological well-being of the child. The judge concluded the only means

of assuring L.A.A. permanency and healthy development was to terminate

M.Z.'s parental rights.

      The judge granted the Division guardianship. This appeal followed.

                                         I.

      "Appellate review of a trial court's decision to terminate parental rights is

limited[.]" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Because

of the Family Part's special jurisdiction and expertise in family matters, we

accord particular deference to a Family Part judge's fact-finding." N.J. Div. of

Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008); see

Cesare v. Cesare, 154 N.J. 394, 413 (1998). Deference is appropriate because

the trial judge has a "'feel for the case' that can never be realized by a review of

the cold record." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552


                                                                            A-1991-17T1
                                        15
(2014). A reviewing court will not disturb a family court's termination of

parental rights so long as the decision is "supported by substantial and credible

evidence on the record." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.

420, 448 (2012) (citations and internal quotations omitted).

        "When the credibility of witnesses is an important factor, the trial court's

conclusions must be given great weight and must be accepted by the appellate

court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family

Servs. v. F.M., 375 N.J. Super. 235, 259 (2005) (citing In Re Guardianship of

DMH, 161 N.J. 365, 382 (1999)). In other words, a family court decision is

overturned only when the fact-findings are "so wide of the mark that [the

Appellate Division's] intervention is necessary to correct an injustice." F.M.,

211 N.J. at 447. The factual findings of the trial court should not be disturbed

on appeal unless "they are so wholly insupportable as to result in a denial of

justice[.]" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)

(citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-

84 (1974)).     When the trial court's findings are "supported by adequate,

substantial and credible evidence" those findings should be upheld on appeal.

Ibid.




                                                                            A-1991-17T1
                                         16
      On appeal, M.Z. argues he was deprived of counsel at the Title 9 stage of

the proceedings, which in turn deprived him of the ability to advocate for

L.A.A.'s placement with family rather than a resource parent. M.Z. claims he

was prejudiced because he was not produced from jail to attend the trial. He

contends his counsel was ineffective for failing to advocate for him at the Title

9 stage and avoid the guardianship filing. He also claims his counsel was

ineffective in the guardianship phase for failing to pursue a bonding evaluation

between the child and J.M., and for failing to advocate for adoption by J.M.

M.Z. also challenges the judge's prong three findings, claiming the Division

made minimal efforts to facilitate his participation in the trial, involve J.M. and

T.Z. in the case, and pursue a permanency placement with relatives.

                                        II.

      We first address M.Z.'s claims he was deprived of counsel during critical

stages of the proceedings, was not produced to attend court, and that his counsel

was ineffective. At the outset, we note these arguments are raised for the first

time on appeal. Generally, "issues not raised below will ordinarily not be

considered on appeal unless they are jurisdictional in nature or substantially

implicate the public interest." N.J. Div. of Youth & Family Servs. v. M.C. III,

201 N.J. 328, 339 (2010) (citing Cty. of Essex v. First Union Nat'l Bank, 186


                                                                           A-1991-17T1
                                       17
N.J. 46, 51 (2006)); see also Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234

(1973).

      Notwithstanding, we are unpersuaded M.Z.'s claims warrant reversal of

the judgment. In N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301

(2007), our Supreme Court adopted the two-part test for assessing ineffective

assistance of counsel from Strickland v. Washington, 466 U.S. 668 (1984). This

test establishes:

             (1) counsel's performance must be objectively
             deficient—i.e., it must fall outside the broad range of
             professionally acceptable performance; and (2)
             counsel's deficient performance must prejudice the
             defense—i.e., there must be "a reasonable probability
             that, but for counsel's unprofessional errors, the result
             of the proceeding would have been different."

             [192 N.J. at 307 (quoting Strickland, 446 U.S. at 694).]

      M.Z. argues the deprivation of counsel is presumed to be prejudicial, and

therefore negates the requirement to prove the second prong of the Strickland

standard. Specifically, he relies upon United States v. Cronic, 466 U.S. 648

(1984); State v. Miller, 216 N.J. 40 (2013); and United States v. Gonzalez-

Lopez, 548 U.S. 140 (2006).

      M.Z. also relies upon In re Guardianship of M., 158 N.J. Super. 585 (J. &

D.R. Ct. 1978). In M. the court voided a parent's voluntary surrender, entered


                                                                         A-1991-17T1
                                       18
after the guardianship complaint was filed, where the Division negotiated the

surrender without the parent's attorney present. 158 N.J. Super. 593-94. The

court noted it was not convinced the parent made a knowing and intelligent

waiver of her constitutional right to counsel. Id. at 593. The court described

the parent's frailties, and stated she:

             [wa]s blind. Alcohol has been a problem for her. . . .
             she had difficulty when walking and negotiating the
             steps to the witness stand even with assistance, and her
             hands were constantly shaking as if in a tremor. From
             her testimony and demeanor it was obvious that she was
             not a very intelligent woman.

             [Ibid.]

The court also noted the Division had direct contact with the parent over her

counsel's objection. Id. at 593-94. The court stated this "conduct may itself be

a sufficient overriding equitable consideration so as to invalidate the signing of

the [s]urrender [c]onsent form." Id. at 594.

      M.Z.'s circumstances are far different and do not persuade us there was a

presumptive prejudice. Indeed, M.Z. does not suffer from the various deficits

outlined by the court in M. Although M.Z. was without counsel for the majority

of the Title 9 proceedings, it was because he was not the target of the litigation.

Moreover, because A.L.A. was alive and M.Z. was incarcerated, the Division's

goals were reunification with A.L.A. Once it became obvious reunification with

                                                                           A-1991-17T1
                                          19
A.L.A. was not a possibility, and when she died, M.Z. was assigned counsel and

remained represented throughout the litigation and its most critical phases.

      M.Z. argues New Jersey Division of Youth and Family Servives v. R.G.,

397 N.J. Super. 439 (App. Div. 2008) is dispositive. We disagree. In R.G. the

trial court held a fact finding hearing, heard a dispositive motion, and

adjudicated that the parent had committed abuse or neglect—all before the

parent had been appointed counsel. Id. at 444-45. The parent's only ability to

confer with counsel was an informal discussion with a public defender who

happened to be present in the courtroom.        Ibid. Although we found these

conditions warranted a reversal of the abuse and neglect finding, we did not, as

M.Z. contends, decide the matter under the prejudice prong of the Strickland

test. Id. at 450.

      Moreover, the parent in R.G. was the target of the Title 9 proceedings, and

was deprived of counsel at the most critical fact-finding phase of the case.

M.Z.'s circumstances were much different. He was able to consult with his

attorney at all critical points of the litigation. He was represented when the court

dismissed the Title 9 litigation, and the dismissal occurred without an

adjudication of abuse or neglect against either parent. Thus, R.G. is inapposite,




                                                                            A-1991-17T1
                                        20
and the circumstances presented do not support a finding of a presumption of

prejudice.

      M.Z. also relies upon In re Adoption of J.E.V., 226 N.J. 90 (2016), where

the Supreme Court mandated the appointment of counsel for a biological parent

who could not afford an attorney in a contested private adoption. Id. at 108.

The Court held reversal of the judgment of adoption was required where "a

complete denial of counsel casts doubt on the fairness of the process followed."

Id. at 115 (citing State v. Shirley E. (In re Torrance P.), 724 N.W.2d 623 (Wis.

2006)). Again, for the reasons we have previously expressed, the circumstances

of J.E.V. are wholly dissimilar from the facts presented here. There was no

"complete deprivation" of counsel for M.Z. Instead, the judge took special care

to assure the appointment of the same attorney for M.Z. in both the Title 9 and

guardianship phases of the litigation. For these reasons, we decline to find a

presumption of prejudice requiring us to obviate a consideration of the second

Strickland prong.

      M.Z. asserts the deprivation of counsel during the Title 9 proceedings

prior to A.L.A.'s death, during the period between the Title 9 dismissal and the

initiation of the guardianship matter, all prevented him from influencing the

future of the case. Specifically, M.Z. asserts if he had been included in the Title


                                                                           A-1991-17T1
                                       21
9 litigation, he would have advocated for greater participation by T.Z. and J.M.,

and against L.A.A.'s placement in a resource home. We are unpersuaded.

      Not only was there the lack of presumption of prejudice on M.Z.'s behalf,

the facts do not support a finding of actual prejudice, and thus, a reason to

disturb the guardianship judgment. Indeed, as we noted, M.Z. was incarcerated

throughout the Title 9 litigation and the Division's objective was reunification

with A.L.A. Nothing in the record indicates reunification was not possible prior

to A.L.A.'s death. When A.L.A. passed away, M.Z. was represented by counsel

at two hearings, which ultimately resulted in dismissal of the Title 9 matter

without a determination of abuse or neglect. There is no dispute M.Z. was

represented by counsel throughout the Title 30 litigation. Additionally, he was

produced telephonically from prison in Florida and participated in the

proceedings.

      In N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 255

(App. Div. 2009), we addressed whether "a parent's appeal of an order that

dismisses a Title 9 action brought by the Division . . . before . . . an adjudication

of abuse or neglect and entry of a final order of disposition is mooted by the

Division's filing of a Title 30 action for termination of parental rights." We

noted Title 9 and Title 30 matters are separate proceedings and the Division may


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                                        22
file a Title 30 action without filing a Title 9 complaint or having obtained a

finding of abuse or neglect. Id. at 259-60 (citations omitted).

      We also discussed the significance of a dismissal of a Title 9 action

without an adjudication regarding abuse or neglect.

            [The Division]'s dismissal of a Title 9 action without an
            adjudication that the parent has abused or neglected his
            or her child has none of the adverse consequences of a
            final order of disposition based on a finding of abuse or
            neglect. Such a disposition, like the dismissal of any
            other action by a plaintiff under Rule 4:37-1,
            "adjudicates nothing," Malhame v. Borough of
            Demarest, 174 N.J. Super. 28, 30 (App. Div. 1980)
            (quoting Christiansen v. Christiansen, 46 N.J. Super.
            101, 109 (App. Div. 1957)), and thus cannot provide a
            predicate for relief against the defendant. Moreover,
            the voluntary dismissal of an action "leaves the
            situation so far as procedures therein are concerned the
            same as though the suit had never been brought, thus
            vitiating and annulling all prior proceedings and orders
            in the case." A.B. Dick Co. v. Marr, 197 F.2d 498, 502
            (2d Cir. 1952); accord Nat'l R.R. Passenger Corp. v.
            Int'l Ass'n of Machinists & Aerospace Workers, 915
            F.2d 43, 48 (1st Cir. 1990).

            [Id. at 262-63.]

Thus, we held the appeal was moot under the circumstances presented, and

emphasized the parent's due process rights would be fully protected by the trial

of the Title 30 action. Id. at 264. We stated a Title 30 trial would:

            afford . . . the opportunity . . . to contest the charges of
            abuse or neglect or other harm to the child caused by

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                                        23
             the parental relationship, [the parent]'s willingness and
             ability to address the causes of that harm, the adequacy
             of remedial services [the Division] provided . . . , and
             whether termination of . . . parental rights . . . would do
             more harm than good. Moreover, [the Division] will
             bear the burden of establishing the standards for the
             termination of parental rights by "clear-and-
             convincing-evidence" rather than the lesser burden of
             proof by a "preponderance of the evidence" that would
             apply in an action under Title 9.

             [Id. at 264 (citing K.M., 136 N.J. at 557).]

      Here, M.Z. did not appeal from the dismissal of the Title 9 litigation.

Regardless, because the Title 9 dismissal "adjudicate[d] nothing[,]" it had no

prejudicial effect on M.Z.'s rights in the guardianship proceeding. As we noted,

at the outset of the guardianship matter, the judge obtained the necessary

information for M.Z. to complete an application for the appointment of counsel,

and he was provided the same public defender who represented him during the

Title 9 proceedings. The Division sent a caseworker to Florida to meet with

M.Z. to discuss the case and arrange for his participation in the trial. M.Z.'s trial

counsel represented him throughout the guardianship matter and M.Z.

participated in the proceedings. At trial, M.Z.'s counsel offered a vigorous

defense of the Division's case, cross-examined its experts, and adduced

testimony from the T.Z. and J.M. in support of M.Z.'s defense. M.Z. does not

contest these facts.

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                                        24
      Furthermore, the record clearly indicates the Division had involved T.Z.

and J.M. from the onset of the litigation. As we noted, the Division contacted

J.M. immediately after L.A.A.'s removal and she indicated she was not

interested in caring for the child. The Division placed L.A.A. with T.Z. for a

brief period, but she indicated she no longer wanted to be considered as a

placement option. It was only after A.L.A.'s death and approval of the Division's

permanency plan of a termination of parental rights followed by adoption that

either T.Z. or J.M. expressed a serious interest in caring for L.A.A. Even then,

the Division was responsive and engaged J.M. with a visitation schedule and

multiple evaluations to determine whether a placement with her was viable.

      Moreover, despite M.Z.'s contention that the disposition of the Title 9

matter made the guardianship litigation a formality, the record indicates the

Division's plan was adoption by J.M. The record demonstrates the permanency

plan changed after the Title 30 proceedings commenced and expert evaluations

were submitted—not during the transition from the Title 9 proceedings into the

guardianship. M.Z. was represented by competent counsel and was fully capable

of defending the guardianship and advocating for L.A.A.'s placement with a

grandparent.   The facts do not support M.Z.'s claim the Division had not

thoroughly vetted and sought a placement with T.Z. or J.M. early in the


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                                      25
proceedings, or that M.Z.'s advocacy for a relative placement at some unknown

point before A.L.A.'s death would have changed the trajectory of the litigation.

      The record lacks evidence of an ineffective assistance of counsel to meet

either prong of the Strickland standard. To the extent we have not further

addressed M.Z.'s arguments on this account, it is because they are without

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

                                       III.

      Finally, we address M.Z.'s claims the Division failed to prove the third

prong of the best interests test. M.Z. argues the Division failed to meet its

burden to make reasonable efforts to provide services and did not adequately

assess relative placements in violation of its statutory burden. M.Z. argues the

clear and convincing standard requires proof the Division made reasonable

efforts to help the parent remedy the problems leading to the child's removal.

He alleges the Division ignored him until shortly before the trial, ignored T.Z.'s

interest in being a placement option for L.A.A., and failed to assist J.M. in

remedying the parenting deficiencies cited by Dr. Jeffrey.

      Under N.J.S.A. 30:4C-15.1(a), the Division must prove by clear and

convincing evidence termination is in the best interest of the child. F.M., 211

N.J. at 447. The clear and convincing evidence standard is satisfied when, in


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                                       26
the mind of the factfinder, there is a "firm belief or conviction as to the truth of

the allegations sought to be established, evidence so clear, direct and weighty

and convincing as to enable the fact finder to come to a clear conviction, without

hesitancy, of the precise facts in issue." N.J. Div. of Youth & Family Servs. v.

I.S., 202 N.J. 145, 168 (2010) (quoting In re Seaman, 133 N.J. 67, 74 (1993)

(citation, internal quotation and editing marks omitted)).

      Pursuant to the "best interest of the child" standard, the Division must

prove by clear and convincing evidence:

            (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 [D]ivision 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.


                                                                            A-1991-17T1
                                        27
            [N.J.S.A. 30:4C-15.1(a).]

"Importantly, those four prongs 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. G.L., 191 N.J.

596, 606-07 (2007) (quoting In re Guardianship of K.H.O., 161 N.J. 337, 348

(1999)).

      Under prong three, the court must consider whether the Division "made

reasonable efforts to provide services to help the parent correct the

circumstances which led to the child's placement outside the home[.]" N.J.S.A.

30:4C-15.1(a)(3). The Division's efforts must be analyzed "with reference to

the circumstances of the individual case[,]" including the parent's degree of

participation. In re Guardianship of DMH, 161 N.J. at 390 (citing In Re Tricia

& Trixie H., 126 N.H. 418 (1985)).

      N.J.S.A. 30:4C-15.1(c) defines diligent efforts as those "attempts by an

agency authorized by the [D]ivision to assist the parents in remedying the

circumstances and conditions that led to the placement of the child and in

reinforcing the family structure[.]" The statute lists examples of "reasonable

efforts" at reunification, including but not limited to:

            (1) consultation and cooperation with the parent in
            developing a plan for appropriate services;

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                                        28
            (2) providing services that have been agreed upon, to
            the family, in order to further the goal of family
            reunification;

            (3) informing the parent at appropriate intervals of the
            child's progress, development and health; and

            (4) facilitating appropriate visitation.

            [Ibid.]

Further, "[the Division]'s efforts in providing [services] must by their very

nature take into consideration the abilities and mental conditions of the

parents[,]" but the determination of reasonableness does not turn on the success

of those efforts. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super.

418, 442 (App. Div. 2001).

      Relative placement is among many of the resources available to the

Division to satisfy its reasonable efforts obligation.     Although there is no

presumption of favorability for relative placements, the assessment for such

placements help the Division demonstrate its reasonable efforts at family

reunification. See N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J.

Super. 568, 580-81 (App. Div. 2011).          Additionally, while kinship legal

guardianship (KLG) is an alternative to termination of parental rights, it is only

available where the relative is unwilling to adopt. Id. at 579; see also N.J. Div.


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                                       29
of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 130 (App. Div. 2011)

("[W]hen a caregiver in a case brought by the [Division] unequivocally asserts

a desire to adopt, the finding required for a KLG that 'adoption of the child is

neither feasible nor likely' cannot be met."); N.J. Div. of Youth & Family Servs.

v. P.P., 180 N.J. 494, 512-13 (2004) (where our Supreme Court stated KLG

should only be considered when adoption is not an option). "If the [Division]

determines that the relative is unwilling or unable to assume the care of the child,

the [Division] shall not be required to re-evaluate the relative." N.J.S.A. 30:4C-

12.1(b).

      We reject M.Z.'s claims the third prong of the best interests test was not

met. There is no credible dispute M.Z. had not met L.A.A., played no role in

his life, and was incapable of parenting the child at any point during the

litigation or into the foreseeable future.        Moreover, the record clearly

demonstrates the Division engaged A.L.A. with services aimed at reunification

when she was the only parent available to care for L.A.A. due to M.Z.'s

incarceration.

      When the removal occurred, the Division immediately sought a relative

placement with T.Z. and J.M., who for different reasons each declined the

opportunity to be considered as placement options. When A.L.A. died and J.M.


                                                                            A-1991-17T1
                                        30
requested consideration as a placement option, the Division supported this

request by establishing a reasonable visitation schedule and multiple evaluations

to determine whether placement with J.M. was a viable option. The Division

engaged J.M. even though it had previously determined she was unwilling to

care for the child and was no longer statutorily required to consider her as a

placement option.

      M.Z.'s argument also ignores the fact the Division assessed all available

relative placements and ruled them out because they were not viable parenting

options pursuant to the undisputed expert testimony.         Indeed, Dr. Jeffrey

testified without rebuttal that J.M. suffered from behavioral deficiencies, had

narcissistic tendencies, and possessed no psychological connection with L.A.A.

The expert testimony proved J.M. suffered from adjustment disorder and would

be unable to mitigate the substantial harm L.A.A. would suffer if his relationship

with J.F. were severed.

      The record amply supports the trial judge's prong three findings.

Moreover, the judge's findings as a whole are supported by substantial credible

evidence to warrant granting the judgment of guardianship.

      Affirmed.




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                                       31
