                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2354-17T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

          Plaintiff-Respondent,

v.

J.B.,

          Defendant-Appellant,

and

M.D.N.,

     Defendant.
_________________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF M.L.B., a minor.
_________________________________________

                    Argued October 31, 2018 – Decided November 26, 2018

                    Before Judges Fuentes, Accurso and Moynihan.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Essex County, Docket
                    No. FG-07-0177-17.
             Christine Olexa Saginor, Designated Counsel, argued
             the cause for appellant (Joseph E. Krakora, Public
             Defender, attorney; Christine Olexa Saginor, on the
             brief).

             Katherine A. Gregory, Deputy Attorney General,
             argued the cause for respondent (Gurbir S. Grewal,
             Attorney General, attorney; Jason W. Rockwell,
             Assistant Attorney General, of counsel; Katherine A.
             Gregory, on the brief).

             James J. Gross, Designated Counsel, argued the cause
             for minor M.L.B. (Joseph E. Krakora, Public Defender,
             Law Guardian, attorney; James J. Gross, on the brief).

PER CURIAM

      Defendant J.B. is the biological father of M.L.B., a five-year-old girl born

in 2013. Defendant appeals from the Judgment of Guardianship issued by the

Family Part terminating his parental rights to his daughter.1 Judge Nora J.

Grimbergen conducted a two-day guardianship trial and found, by clear and

convincing evidence, that the Division of Child Protection and Permanency

(Division) satisfied all four prongs of the best interests of the child test codified

in N.J.S.A. 30:4C-15.1(a). In this appeal, defendant argues Judge Grimbergen

erred in finding the Division presented sufficient competent evidence to satisfy,


1
  The Family Part also terminated the parental rights of M.L.B.'s biological
mother, M.D.N. She did not appeal the Judgment of Guardianship.


                                                                             A-2354-17T3
                                         2
by clear and convincing evidence, the first, second, and fourth prongs of the best

interests of the child test.

      After reviewing the record developed at trial, we reject defendant's

argument and affirm substantially for the reasons expressed by Judge

Grimbergen in her January 8, 2018 memorandum of opinion. In lieu of restating

the history of the Division's involvement in this child's life, we incorporate by

reference Judge Grimbergen's description of the evidence presented at the

Guardianship trial. We will, however, summarize the salient facts underpinning

Judge Grimbergen's decision.

      At age sixteen, defendant was tried as an adult and convicted of first

degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). He served a twenty-year

term of imprisonment at a State penal institution before M.L.B.'s birth. Three

days before the child's birth, the Division received a referral from the medical

staff assigned to monitor M.D.N.'s prenatal condition that neither defendant nor

M.D.N. had stable housing. The Division also learned M.D.N. used marijuana

throughout her pregnancy, and that defendant had a chronic substance abuse

problem involving both alcohol and marijuana. The record also shows defendant

was diagnosed with schizophrenia and other socially disabling mental health

issues. Based on the aggressive and controlling way he interacted with M.D.N.,


                                                                          A-2354-17T3
                                        3
the medical staff were also concerned about defendant's propensity for domestic

violence.

      At the time the hospital staff made this referral to the Division, defendant

and his pregnant paramour were staying in his niece's home. Defendant refused

to allow the Division caseworker assigned to investigate the hospital's referral

to enter the residence. He eventually spoke with the caseworker and admitted

he was unemployed and had been smoking marijuana on a regular basis for

approximately thirty years. He admitted he continued to use marijuana even

while serving his twenty-year prison sentence. Defendant was released from

prison approximately five years ago.

      With respect to his mental health, defendant told the caseworker he

received psychotherapy at the Community Psychiatric Institute (Institute) in

2011. According to defendant, the psychiatric staff at the Institute diagnosed

him with intermittent explosive disorder, schizophrenia, and anti-social

personality disorder.   Despite this diagnosis, defendant refused to take the

psychiatric medication prescribed by the physicians at the Institute. He was also

referred to substance abuse and mental health treatment facilities on multiple

occasions, but steadfastly refused to attend. In the record of the interview, the




                                                                          A-2354-17T3
                                        4
caseworker noted defendant had a strong odor of alcohol emanating from his

breath.

      M.D.N. tested positive for marijuana and heroin the day after she gave

birth to M.L.B.     The infant was premature, underweight, suffered from

withdrawal symptoms related to her mother's marijuana and heroin use while

pregnant, and was born with a sexually transmitted disease that required

immediate treatment with antibiotics. She was placed in the neonatal intensive

care unit. The Division thereafter filed an order to show cause and a verified

complaint in the Family Part seeking temporary legal custody of M.L.B. The

Division also discovered defendant was no longer residing with his niece and

was homeless at the time and arranged for defendant to receive mental health

services at the hospital; defendant declined to participate. The court granted the

Division's application for temporary custody of M.L.B. The court found the

removal of the child was necessary to protect her health, safety, and welfare.

The court particularly noted defendant's criminal history, untreated mental

health and substance abuse problems, and failure to avail himself of the

treatment programs offered by the Division as reasons for finding him unfit to

care for his infant daughter.




                                                                          A-2354-17T3
                                        5
      The hospital discharged M.L.B. at the end of July 2013. The Division

initially placed M.L.B. with a resource parent who was unable to care for the

infant due to her work schedule. Shortly thereafter, the Division placed two-

month-old M.L.B. in a new foster home in which the resource parents expressed

an immediate interest to adopt her. M.L.B. remains in this resource home to this

day and her resource parents are still committed to adoption.

      At the Division's behest, psychologist Minerva C. Gabriel, Ph.D.,

evaluated defendant in August 2013.2 According to defendant, he did not have

the support of his family. His parents were deceased and he did not have a close

relationship with his siblings. Defendant also told Dr. Gabriel that he was

homeless, unemployed, lacked health insurance, used marijuana on a regular

basis, and drank alcohol to the point of inebriation as a means of falling asleep.

He was a diagnosed schizophrenic who experienced hallucinations and had

bouts of rage. Defendant was concerned that his psychiatric problems would

cause him to harm someone.        Dr. Gabriel noted the Division had referred

defendant to programs offering psychological counseling and substance abuse




2
  Dr. Gabriel did not testify at trial. The court admitted into evidence her report
of defendant's psychological evaluation without objection.


                                                                           A-2354-17T3
                                        6
treatment. These referrals proved to be ineffective because defendant either did

not attend or was discharged from these programs due to his poor attendance.3

      Defendant's involvement with the criminal justice system did not end after

he completed his twenty-year sentence for aggravated manslaughter. On June

11, 2014, defendant was convicted of simple assault for threatening to kill

M.D.N. The court ordered defendant pay fines and mandatory penalties; he was

incarcerated related to this offense from May 2014 to June 11, 2014. Because

the victim of this assault was the biological mother of defendant's daughter, this

offense also constituted an act of domestic violence.       See N.J.S.A. 2C:25-

19(a)(2).

      On July 7, 2014, Integrity House accepted defendant into its outpatient

substance abuse treatment program.       In addition to addiction therapy, this

program provided defendant with individual counseling, group counseling,

anger management classes, and relapse prevention courses. Defendant also

informed the Division he had found employment. Based in large part on these


3
    The programs and organizations made available to defendant included
Catholic Charities, to arrange for admission into a residential substance abuse
treatment program; Family Connections, to provide parenting skills classes;
Babyland, which declined to accept defendant based on the risk that he would
harm himself or others; and Family Connections, which provided defendant
individual psychotherapy sessions, couples counseling, and anger management
courses.
                                                                          A-2354-17T3
                                        7
positive developments, on July 14, 2014, the Family Part rejected the Division's

plan of termination of parental rights followed by adoption. The judge was

hopeful defendant would follow through with these services and take advantage

of this employment opportunity to provide a realistic plan for the care of his

young daughter. As ordered by the court, the Division prepared a case plan for

reunification.

      The Family Part held a permanency hearing three days later. The Division

reported to the court that defendant had not participated in services because he

was recently arrested and charged with threatening to kill M.D.N., another act

of domestic violence. See N.J.S.A. 2C:25-19(a)(3). As a result of a substance

abuse evaluation performed on July 24, 2014 related to his marijuana abuse and

agreed to attend an intensive outpatient treatment program at Integrity House.

Division records also show defendant participated in domestic violence classes

related to this alleged threat to kill the child's biological mother. On July 25,

2014, Catholic Charities evaluated defendant regarding his mental health issues.

Defendant reported he suffered from seizures, but did not take the medication

prescribed by physicians. He was employed on a part-time basis and his housing

situation remained unstable.




                                                                         A-2354-17T3
                                       8
      On August 19, 2014, the court again rejected the Division's

recommendation to terminate defendant's parental rights followed by the child's

adoption by her foster parents. The court gave defendant additional time to

address the problems preventing his reunification with his daughter. The judge

was particularly concerned about defendant's ability to secure gainful

employment and stable, suitable housing. If defendant was able to successfully

address these issues, the judge remained hopeful defendant would be able to

provide a realistic reunification plan that would be in the child's best interests.

      On August 27, 2014, Dr. Alexander Iofin conducted a psychiatric

evaluation of defendant.4 According to Dr. Iofin, defendant denied having any

mental health or behavioral problems. With respect to his substance abuse

issues, defendant claimed he used marijuana and alcohol approximately one

month before the evaluation. Dr. Iofin opined defendant suffers from an anxiety

disorder, a depressive disorder, and either an intermittent explosive disorder or

an impulse control disorder. He recommended defendant participate in a drug

treatment program, submit to drug screenings on a regular basis, obtain and

maintain    stable   housing    and    employment,      and    participate    in     a


4
  Dr. Iofin also did not testify at the guardianship trial. The court nevertheless
admitted into evidence his report of defendant's psychiatric evaluation without
objection.
                                                                             A-2354-17T3
                                         9
neuropsychological evaluation.      On September 9, 2014, Integrity House

reported that although his attendance had improved, defendant tested positive

for alcohol. Nine days later, the Family Part approved the Division's plan of

termination of parental rights followed by adoption.     The court found that

despite recent indications of improvement, defendant required extensive

treatment to address his mental health issues.      In early December 2014,

defendant informed the Division he was still homeless.

      On January 10, 2015, Charles S. Hasson, Ph.D., conducted a

neuropsychological evaluation of defendant.5 Dr. Hasson did not find any

evidence suggesting defendant has any intellectual deficits or memory

impairments. However, defendant denied ever having seizures or suffering from

mental health problems, including schizophrenia. Dr. Hasson opined defendant

suffers from a character disorder that prevents him from managing common life

challenges.   His evaluation indicated defendant experienced behavioral

problems while incarcerated. Dr. Hasson also found defendant had serious

difficulties securing stable housing, and obtaining and maintaining employment.

In the course of the evaluation, defendant was hypersensitive to criticism and



5
  Dr. Hasson did not testify at the guardianship trial. The court admitted his
report into evidence without objection.
                                                                       A-2354-17T3
                                     10
had a "serious anger control problem." Dr. Hasson concluded that defendant is

"his own worst enemy" because he is unwilling or unable to accept the help he

needs.

      Dr. Hasson opined defendant is not able to psychologically parent a child

at this time or in the foreseeable future. Although defendant is able to "mouth

the platitudes," Dr. Hasson concluded he does not have the "frustration tolerance

and coping skills" necessary to provide a stable home. Defendant's parenting

plans are "unrealistic in terms of providing for his daughter." According to Dr.

Hasson, the child would be at risk of neglect and harm if she were to be placed

in defendant's care. This cycle of initial compliance with Division-sponsored

services followed by instability and expulsion from these programs was a

discernable pattern in this case.     Dr. Hasson found equally problematic

defendant's failure to acknowledge his mental health problems.

      On April 23, 2015, psychologist Mark Singer conducted a psychological

evaluation of defendant. 6 Defendant reported missing visitation time with his

daughter due to illness and a lost bus pass. Defendant told Singer he had been

working as a mail sorter for approximately "a month and a half." He did not


6
   Unlike the other mental health professionals who previously examined
defendant, Singer testified at the guardianship trial. The court admitted his
reports in evidence without objection.
                                                                         A-2354-17T3
                                      11
identify the name of his alleged employer. Defendant also told Singer his

brother "would care" for M.L.B. while he was at work. With respect to housing,

defendant claimed that for the past week he had been residing alone in a two-

bedroom apartment. Defendant told Singer this alleged apartment was a suitable

residence for the child. Singer noted that when he asked defendant "what he

would do if his daughter had a high fever," defendant responded: "call 911."

When Singer asked defendant what was the normal body temperature of a child,

defendant responded: "86.7."

      In his psychological evaluation report, Singer concluded defendant: (1)

lacked stable housing; (2) missed a number of visitation opportunities with the

child without good cause; and (3) was in denial with respect to his substance

abuse and mental health problems. He opined that defendant could not handle

the stress of parenting and lacked the insights and skills necessary to cope with

events that may arise related to the child's safety and overall welfare. Because

of these deficiencies, Singer determined defendant was not able to parent M.L.B.

at that time. He did not rule out the possibility that defendant could be a

parenting option in the future if he complied with substance abuse and mental

health services.




                                                                         A-2354-17T3
                                      12
      Singer also relied on his interactions with defendant that same day to

conduct a bonding evaluation between defendant and his daughter. He noted

defendant minimally interacted with M.L.B., despite the child being slightly

verbal. Singer wrote in his report: "[a]t times, [defendant] focused more of his

attention towards his cell phone than he did towards [M.L.B.]." Singer noted

that when the visiting session was over, "[t]he child had no difficulty separating

from [defendant]."

      Singer also conducted a bonding evaluation between M.L.B. and her

resource mothers who wanted to adopt her. The resource parents had been in an

exclusive romantic relationship for twenty years and were joined in a civil union.

They have a ten-year-old biological child, are both employed, and reside in a

three-bedroom apartment located in a two-family house. Both resource parents

were loving and attentive to M.L.B. during the bonding evaluation. M.L.B.

appeared very well cared for physically, and was happy and joyful. Singer

opined M.L.B. viewed her resource parents as her central parental figures, and

did not view defendant as her parent. The child lacked a secure emotional

attachment to defendant and, conversely, showed a strong and secure attachment

to her resource mothers. Singer opined that the loss of M.L.B.'s relationship




                                                                          A-2354-17T3
                                       13
with her resource mothers would cause significant psychological and emotional

harm to the child that defendant would be unable to mitigate.

      Singer also opined that if defendant improved his parenting skills and

participated in psychological therapy, he may be able to mitigate some of the

psychological harm M.L.B. would experience if her relationship with her

resource family was severed. However, due to M.L.B.'s age and the length of

time she has spent with her foster family, Singer noted the window of time to

support defendant becoming a viable parenting option was "EXTREMELY

LIMITED."

      Despite this evidence, the court rejected the Division's plan for

termination of defendant's parental rights and gave defendant several additional

opportunities to address the problems we have described at length here.

Ultimately, these efforts proved to be futile. Defendant remained addicted to

illicit narcotics, lacked stable housing, and failed to participate in substance

abuse treatment. On January 10, 2017, the court approved the Division's plan

of termination of parental rights followed by adoption.7 A second bonding




7
  On January 31, defendant tested positive for marijuana and alcohol. He tested
positive for marijuana seven more times from February 3 to 27, 2017.


                                                                        A-2354-17T3
                                      14
evaluation conducted in February 2017 by psychologist Elizabeth Stillwell

reached the same conclusions Singer reached nearly two years earlier.

      Judge Grimbergen conducted the guardianship trial on two consecutive

days in December 2017. The Division presented the evidence we have described

herein. Defendant testified in his own defense. Judge Grimbergen found, by

clear and convincing evidence, the Division proved all four statutory prongs

codified in N.J.S.A. 30:4C-15.1(a).     She laid out her factual findings and

conclusions of law in a memorandum of opinion dated January 8, 2018.

      It is well-settled that parents have a fundamental constitutional right to

raise their children. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527,

553 (2014).     However, this parental right is tempered by the State's

commensurate "responsibility to protect children whose vulnerable lives or

psychological well-being may have been harmed or may be seriously

endangered by a neglectful or abusive parent." N.J. Div. of Youth & Family

Servs. v. F.M., 211 N.J. 420, 447 (2012). The termination of parental rights is

viewed as a "weapon of last resort." Ibid. As this court has aptly noted, "[a]fter

the elimination of the death penalty, we can think of no legal consequence of

greater magnitude than the termination of parental rights." In re Adoption of

Child by J.E.V., 442 N.J. Super. 472, 481 (App. Div. 2015). Thus, a court may


                                                                          A-2354-17T3
                                       15
terminate parental rights "only in those circumstances in which proof of parental

unfitness is clear," and with great "caution and care." F.M., 211 N.J. at 447.

      "The best-interests-of-the-child standard codified at N.J.S.A. 30:4C-

15.1(a) 'aims to achieve the appropriate balance between parental rights and the

State's parens patriae responsibility.'" R.G., 217 N.J. at 554 (quoting N.J. Div.

of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007)). In order to

terminate defendant's parental rights, the Division must prove, by clear and

convincing evidence the following statutory criteria:

            (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-2354-17T3
                                      16
            [N.J.S.A. 30:4C-15.1(a); see also N.J. Div. of Youth &
            Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986)
            (reciting the four controlling factors codified in
            N.J.S.A. 30:4C-15.1(a)).]

      These four statutory factors "are not discrete and separate" but instead,

"they relate to and overlap with one another to provide a comprehensive standard

that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J.

337, 348 (1999). The Division must prove each of the four factors by clear and

convincing evidence. R.G., 217 N.J. at 554. That standard "is not a hollow

one," N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010), as

such evidence produces "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 factfinder to come to a clear conviction, without

hesitancy, of the precise facts in issue." Ibid. (quoting In re Seaman, 133 N.J.

67, 74 (1993) (internal quotation and editing marks omitted)).

      The scope of review on appeals from orders terminating parental rights is

limited. R.G., 217 N.J. at 552. We are bound to uphold the trial court's findings

as long as they are supported by "adequate, substantial, and credible evidence."

Ibid. The Family Part's decision should be reversed or altered on appeal only if

the trial court's findings were "so wholly unsupportable as to result in a denial

of justice." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004)

                                                                         A-2354-17T3
                                      17
(quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Likewise, the

appellate court must give considerable deference to the family court judge's

expertise and opportunity to have observed the witnesses firsthand and evaluate

their credibility. R.G., 217 N.J. at 552-53. The Family Part "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 & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)

(quoting M.M., 189 N.J. at 293).

      Additionally, as the fact finder, while the "trial judge is 'not required to

accept all or any part of [an] expert opinion,'" In re Civil Commitment of R.F.,

217 N.J. 152, 156, 174 (2014) (quoting In re D.C., 146 N.J. 31, 61 (1996)), he

or she may "place[] decisive weight on [the] expert." Id. at 156. Even where an

appellant alleges "error in the trial judge's evaluation of the underlying facts and

the implications to be drawn therefrom," deference must be afforded unless the

judge "went so wide of the mark that a mistake must have been made." M.M.,

189 N.J. at 279 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am. Inc., 233

N.J. Super. 65, 69 (App. Div. 1989)). However, "[a] trial court's interpretation

of the law and the legal consequences that flow from established facts are not




                                                                             A-2354-17T3
                                        18
entitled to any special deference." R.G., 217 N.J. at 552 (quoting Manalapan

Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).

      Despite the repeated opportunities the Family Part provided defendant to

address his chronic and severe psychiatric and substance abuse problems, he

remains unable or unwilling to maintain a stable lifestyle.           Defendant's

dysfunctional lifestyle is clearly not in this child's best interests. The mental

health experts who evaluated defendant unanimously agreed that he is unable to

safely care for this child. The Division considered, investigated, and ruled out

all of the individuals defendant offered as alternative caregivers. This five-year-

old child has formed a strong emotional and psychological bond with her two

mothers, the only parents she has ever known. It is highly probable that severing

this bond would cause her serious emotional and psychological harm.            The

mental health experts all agreed that defendant is not capable of mitigating this

harm. They also agreed that it is in the child's best interests to terminate

defendant's parental rights to allow her foster parents to complete the process of

adoption.   The need for permanency and stability in this child's life is of

paramount importance. We discern no legal or factual basis to disturb Judge

Grimbergen's decision to terminate defendant's parental rights.

      Affirmed.


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                                       19
