                                      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                                NOT FOR PUBLICATION WITHOUT THE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-4840-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

D.F.L.,

          Defendant,

and

A.T.F.,

     Defendant-Appellant.
_____________________________

IN THE MATTER OF THE
GUARDIANSHIP OF J.L.E.L.F.,

     a Minor.
_____________________________

                   Submitted April 21, 2020 – Decided May 8, 2020

                   Before Judges Currier and Firko.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Cape May County,
            Docket No. FG-05-0001-19.

            Joseph E. Krakora, Public Defender, attorney for
            appellant (Robyn A. Veasey, Deputy Public Defender,
            of counsel; Kathleen Gallagher, Designated Counsel,
            on the briefs).

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

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor (Meredith Alexis Pollock, Deputy
            Public Defender, of counsel; Noel Christian Devlin,
            Assistant Deputy Public Defender, of counsel and on
            the brief).

PER CURIAM

      Defendant A.T.F. (Alex) 1 appeals from a June 21, 2019 Family Part order

terminating his parental rights to his daughter, J.L.E.L.F. (Jennifer). The child's

mother, D.F.L. (Diane), executed an identified surrender on August 22, 2018,

and has not appealed. We find no merit in Alex's appeal and affirm.




1
  We use fictitious names for A.T.F., D.F.L., J.L.E.L.F., and the resource mother
to protect their privacy and for ease of reference. See R. 1:38-3(d)(12).
                                                                           A-4840-18T3
                                        2
                                        I.

      We recount the most significant evidence to lend context to the analysis

that follows. Jennifer was born in November 2004. On December 21, 2004, the

Division of Child Protection and Permanency (Division) received a referral that

Diane presented at a hospital under the influence of drugs. Diane mentioned she

had a child but could not remember where the child was. During the Division's

investigation, Diane admitted "that she used Ecstasy, marijuana, heroin, and

[O]xycontin two days [before]" and was not addressing her post-partum

depression. Alex admitted to alcohol use. Both defendants admitted to episodes

of domestic violence.

      The Division found that the allegations of neglect were substantiated

because the

              [i]nvestigation revealed that both parents placed
              [Jennifer] at risk of harm by their drug [and] alcohol
              use and domestic violence. [There was] [a]lso [a]
              concern [Diane] wasn't addressing her post[-]partum
              depression. [Diane] admitted to drug use [and domestic
              violence incidents]. [Alex] admitted to alcohol use and
              [domestic violence incidents]. [Jennifer] was removed
              by Dodd. [2] [The] [c]ase [was] to be opened to provide
              services.



2
  A "Dodd removal" is an emergency removal of a child from the custody of a
parent without a court order, as authorized by N.J.S.A. 9:6-8.21 to -8.82.
                                                                        A-4840-18T3
                                        3
      On December 23, 2004, the Family Part judge upheld Jennifer's removal

and ordered both defendants to comply with services to address their substance

abuse and domestic violence issues.

      After initially not complying with services, Alex ultimately completed

Level I treatment at Family Addiction Treatment Services and an anger

management program. On August 19, 2005, Jennifer was reunified with both

parents, and Alex was designated her primary caregiver. On October 5, 2005,

the court entered an order terminating the litigation.

      In December 2005, Alex moved to Florida. On March 31, 2006, the judge

ordered both parents to continue shared legal custody of Jennifer but designated

Diane as the parent of primary residence. In June 2006, Alex was awarded four

weeks of visitation with Jennifer in New Jersey.         However, without court

approval, Alex exercised parenting time with Jennifer in Florida from November

18, 2006, to January 7, 2007, and April 2007 to May 2007.

      In August 2007, the Division received another referral regarding Diane.

It was reported that Diane had an altercation with a security guard in Atlantic

City after he requested that she remove then two-year-old Jennifer from the

casino floor.   In response, Diane rammed Jennifer's baby stroller into the

security guard, with the child in it. The Division removed Jennifer from Diane's


                                                                        A-4840-18T3
                                        4
custody because she was "mentally unstable and not fit to care for a small child

at [that] time."

      Alex sought custody of Jennifer, and the Division requested that the

Florida Department of Children and Families (DCF) assess his home. After

learning that Alex had pending domestic violence charges in Florida, the

Division required him to undergo additional treatment.        Thereafter, Alex

successfully completed anger and stress management as well as substance abuse

services in Florida.

      In December 2007, Alex regained custody of Jennifer, and she went to

live with him in Florida. On February 26, 2012, Florida DCF removed Jennifer

from her father's care after a domestic violence incident occurred between him

and his paramour. Alex choked his paramour until she was unable to breathe.

Jennifer witnessed the event and screamed. A neighbor helped Jennifer escape

out the window. Alex was arrested as a result of the assault on his paramour,

and Jennifer was placed in a resource home.

      Several months later, Florida DCF received a report that Jennifer engaged

in "aggressive sexualized contact" with another girl in her foster home. During

the Florida DCF investigation, Jennifer denied a history of sexual abuse, but

disclosed that her father climbed into bed with her naked on two separate


                                                                        A-4840-18T3
                                       5
occasions. There were also previous reports of Alex beating Jennifer, splitting

her lip open with a belt, and leaving bruises on her legs.

       Florida DCF developed a case plan, attempting reunification with one of

Jennifer's parents as the primary goal, and adoption as a concurrent goal. Diane

was required to visit Jennifer regularly through the ICPC 3 in order to facilitate

reunification.   Additionally, Diane was required to complete a parenting

program, partake in therapy and mental health treatment programs, pay child

support, demonstrate financial stability, and undergo substance abuse treatment.

       Similarly, Alex had to visit Jennifer regularly and was subject to the same

requirements as Diane. Additionally, Alex had to refrain from using corporal

punishment, obtain stable housing, and enroll in a domestic violence evaluation

and counseling program.

       By July 2012, Diane successfully completed her home study, complied

with services, and claimed she was committed to having Jennifer returned to her

care. Alex was deemed "not compliant" in August 2012 by Florida DCF because

he failed to provide required documentation and did not attend a battering

intervention program or psychological evaluation. In September 2012, Alex was

only "partially compliant" because he delayed completion of his Florida home


3
    Interstate Compact on the Placement of Children, N.J.S.A. 9:23-5.
                                                                          A-4840-18T3
                                        6
study. Based upon the Division's recommendation, in September 2012, Jennifer

was returned to Diane's custody in New Jersey.

      Between October 2012 and May 2013, Jennifer underwent individual and

family counseling. In February 2013, Jennifer told a Division caseworker that

she missed her father and wanted to see him but preferred to live in New Jersey

with her mother. Jennifer also advised the caseworker she did not want to speak

to her father by phone "because she [was] still afraid of him."

      Alex remained noncompliant with Florida DCF services. Therefore, the

Division worked toward permanently placing Jennifer with her mother.

Consequently, Florida DCF terminated its case in June 2013, and in August

2013, the Division closed its case. Jennifer was permanently placed with her

mother. The child had no contact with her father from 2012 to the time of trial

in 2019 except for one isolated visit in 2014, intermittent text and phone contact,

and their mutual participation in a bonding evaluation in 2018.

      On September 22, 2014, the Division received a referral from Alex that

Diane was physically abusing Jennifer.         The allegation was unfounded.

Nonetheless, the Division continued to provide trauma-focused therapy for

Jennifer to address her "adjustment disorder with anxiety" stemming from the

physical abuse she endured as a child.


                                                                           A-4840-18T3
                                         7
       On December 27, 2016, Diane reported to the Division that Jennifer

disclosed Alex sexually abused her on two occasions when she was six or seven

years old. On one occasion, Jennifer claimed Alex touched her vagina with his

finger, and another time, he took her hand and made her touch his penis. Alex

denied the allegations.    After Jennifer underwent a New Jersey CARES

evaluation and made the same disclosure to the examiner, the Division

substantiated the allegation. That finding was later changed to "not established"

when Alex appealed the determination and Jennifer refused to testify against

him.

       On May 17, 2017, Alex notified the Division that a text exchange with

Jennifer led him to believe Diane was deceased. State Police investigated his

claim and reported Diane was alive but had to be transported to the hospital for

a psychological evaluation after experiencing a manic state. The next day, the

Division conducted a Dodd removal of Jennifer after Diane was involuntarily

hospitalized. Jennifer was placed with Amy, her current resource parent and

godmother. On May 23, 2017, the removal was approved by the court.

       The Division filed a complaint for custody. Jennifer expressed to her

caseworker that she did not want to live with her father "because she [did not]




                                                                         A-4840-18T3
                                       8
know if he [would] abuse her again." She spoke to him by phone, supervised by

Amy.

       In July 2017, Alex advised the Division caseworker that he completed

domestic violence, parenting, and drug and alcohol programs in Florida. On

August 30, 2017, the judge ordered Jennifer and Alex to temporarily cease

contact so Jennifer could engage in trauma-focused therapy related to the alleged

sexual abuse, as recommended by her therapist. Additionally, the judge ordered

the Division to facilitate an ICPC home study with Alex in Florida. The Division

made multiple requests for the home study and fingerprinting of Alex and his

household members.

       In December 2017, Alex informed the caseworker that he could not

complete the ICPC process because his paramour's mother, who resided with

him, was terminally ill and unable to comply. By letter dated December 11,

2017, Alex's home study was terminated. The letter explained: "The [S]tate of

Florida is submitting a [d]enial home study regarding the aforementioned child.

This placement has been denied, due to [Alex] not cooperating with the home

study process."

       On January 17, 2018, the Division advised the judge that Alex's home

study was denied. Alex requested that the process be reinstated and a second


                                                                         A-4840-18T3
                                       9
ICPC home study was submitted in March 2018. Alex expressed he was "willing

to cooperate with the . . . process." However, on May 16, 2018, Florida denied

the home study again due to Alex's lack of cooperation. Consequently, the

Florida welfare agency could not evaluate and assess the services Alex needed

or refer him to local providers. In the interim, the Law Guardian represented to

the judge that Jennifer "did not want to go to Florida and was fine with not

having any contact with [Alex] . . . ."

       On May 23, 2018, the judge approved the Division's goal of adoption by

Amy, Jennifer's resource mother. The judge interviewed Jennifer that day and

she expressed that she "did not want to go to Florida to live with [Alex] nor did

she want to have visits with him."

       On July 3, 2018, the Division filed a complaint for guardianship, seeking

to terminate Alex and Diane's parental rights to Jennifer. At the August 22,

2018 conference, Diane executed a voluntary surrender of her parental rights to

Amy.     In December 2018, Alex traveled to New Jersey to undergo a

psychological evaluation and bonding evaluation by Dr. James L. Loving. Dr.

Loving also conducted a bonding evaluation between Jennifer and Amy.

Jennifer told Dr. Loving that she wanted to remain with Amy.




                                                                         A-4840-18T3
                                          10
      Dr. Loving noted Alex "pose[d] a number of critical risks in his role as a

parent" based upon his history of domestic violence, physical abuse and alcohol

dependence. The expert diagnosed Alex with alcohol use disorder, antisocial

and narcissistic personality traits, anxiety, adjustment disorder and depression.

Based on his bonding evaluations, Dr. Loving found Jennifer was "extremely

anxious and uncomfortable" when discussing her father, and that she "[felt]

close, safe, and comfortable" with Amy. Dr. Loving opined that Alex could not

provide a safe and stable home for the child.

      From February until June 2019, Judge M. Susan Sheppard conducted a

trial on the Division's guardianship complaint. Dr. Loving and caseworker

Jessica Davis testified for the Division. Dr. Loving testified that if Jennifer was

returned to her father's custody, it would suggest a risk for sexual abuse and

emotional invalidation for the child.

      The caseworker testified that Alex pled guilty to battery in 2013 and spent

164 days in jail resulting from a domestic violence incident. Additionally, the

caseworker testified that alternative relative placements for Jennifer were ruled

out after background checks.       Two other potential placements were not

interested in caring for the child. Alex testified on his own behalf, and Jennifer,




                                                                           A-4840-18T3
                                        11
age fourteen at the time, testified for the Law Guardian, who supported the

termination of Alex's parental rights.

      Judge Sheppard filed a written opinion dated June 21, 2019, in which she

found the Division satisfied, by clear and convincing evidence, all four prongs

of the "best interests of the child" test for termination of parental rights set forth

in N.J.S.A. 30:4C-15.1(a). The judge memorialized her decision in a judgment

of guardianship also dated June 21, 2019. This appeal followed.

                                         II.

      On appeal, Alex argues that the Division failed to establish prong three of

the "best interests of the child test" under N.J.S.A. 30:4C-15.1(a) by clear and

convincing evidence. Alex specifically claims the trial court's findings are

inadequate to support a judgment terminating his parental rights. He argues that

the judge erred by finding the Division made reasonable efforts to provide him

with services needed to help him correct the circumstances that led to Jenn ifer's

placement in foster care.

      A parent has the constitutional right to raise his or her children. N.J. Div.

of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). However, that

right is "tempered by the State's parens patriae responsibility to protect children

whose vulnerable lives or psychological well-being may have been harmed or


                                                                              A-4840-18T3
                                         12
may be seriously endangered by a neglectful or abusive parent." Ibid. (citing

N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008)).

      Accordingly, the Division may petition the court for an order terminating

parental rights in the "best interests of the child" and must establish the four

criteria enunciated in N.J.S.A. 30:4C-15.1(a). The criteria "are not discrete and

separate; 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). It is a fact-sensitive inquiry. N.J. Div. of Youth &

Family Servs. v. M.M., 189 N.J. 261, 280 (2007).

      When a parent contests the termination of his or her parental rights, the

court's function is to decide whether the parent can raise the child without

causing further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "The

burden falls on the State to demonstrate by clear and convincing evidence that

the natural parent has not cured the initial cause of harm and will contin ue to

cause serious and lasting harm to the child." Ibid.

      The scope of our review of a trial court's judgment terminating parental

rights is limited. M.M., 189 N.J. at 278. We must uphold the trial court's factual

findings if they are supported by substantial, credible evidence in the record.

F.M., 211 N.J. at 448-49. Furthermore, findings by the Family Part as to witness


                                                                          A-4840-18T3
                                       13
credibility are entitled to deference because of its expertise in family matters

and because it is better able to evaluate the veracity of witnesses who testified

before it. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014).

      Prong three requires the Division to establish that it "made reasonable

efforts . . . to help the parent correct the circumstances which led to the child's

placement outside the home" and considered alternatives to termination of

parental rights. N.J.S.A. 30:4C-15.1(a)(3). The reasonableness of the Division's

efforts is not measured by whether they were successful in bringing about

reunification of the parent and child. In re Guardianship of DMH, 161 N.J. 365,

393 (1999).

      Here, Judge Sheppard found the Division made reasonable efforts to assist

Alex in correcting the circumstances that led to Jennifer's placement outside the

home. The judge pointed out that the Division attempted to provide Alex with

services through ICPC multiple times.

      However, Alex was largely non-compliant with ICPC's requests, resulting

in a denial of services.    Moreover, although Alex claimed he fulfilled all

necessary services, the judge noted there was no proof that he completed anger

management and substance abuse treatment. He also reneged on his promise to

provide documentation and a signed release for his records to the Division. The


                                                                           A-4840-18T3
                                       14
judge further found that the Division had considered alternatives to termination

of Alex's parental rights.

      On appeal, Alex argues that the only services provided to him by the

Division after Jennifer was removed from her mother in May 2017 were updates

on how the child was doing in foster care, and the psychological and bonding

evaluations performed in anticipation of the guardianship trial. He also contends

the two ICPC requests to Florida were the only efforts the Division made to

ascertain what services he needed to reunify with Jennifer. Lastly, Alex asserts

the Division failed to encourage and nurture his relationship with his daughter.

      The record shows, however, that the Division provided Alex an extensive

array of services spanning over a decade during its lengthy involvemen t with

this family. He refused to cooperate. Alex received evaluations, classes, and

other services addressing his substance abuse, anger issues, domestic violence,

parenting skills, and other problematic areas.

      Notwithstanding the history of treatment, Dr. Loving concluded that Alex

displayed "poor insight and near-categorical denial," a "[l]ack in any real

responsibility-taking or internal motivation to behave different[ly]," and "has an

extremely poor prognosis for addressing his parenting-related risks, even if . . .

give[n] more time and the opportunity to participate in new services . . . ."


                                                                          A-4840-18T3
                                       15
         Judge Sheppard found that Alex "made inconsistent or contradictory

statements" during his testimony.          The judge concluded that Alex was

incredulous, and was "combative and evasive" when answering questions posed

by counsel.

         After interviewing Jennifer, the judge found she was "an extremely

mature, articulate, and credible young lady." The judge concluded Jennifer

feared her father and that her testimony about his physical and sexual abuse was

credible.

         In addition, the record supports Judge Sheppard's finding that the Division

considered alternatives to termination of parental rights and that no such

placement exists. The Division exercised due diligence and tried to find an

alternative placement for Jennifer. Alex's contention that the Division failed to

consider alternatives to termination of his parental rights is entirely without

merit.

         We conclude there is sufficient credible evidence in the record to support

the judge's findings on prong three.

         Affirmed.




                                                                            A-4840-18T3
                                         16
