                                      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                                NOT FOR PUBLICATION WITHOUT THE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-3384-16T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

          Plaintiff-Respondent,

v.

A.L.,

          Defendant-Appellant,

and

S.L.,

     Defendant.
_____________________________________

IN THE MATTER OF THE
GUARDIANSHIP OF D.L., a minor.
_____________________________________

                    Submitted October 23, 2018 – Decided November 14, 2018

                    Before Judges Geiger and Firko.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Hudson County,
                    Docket No. FG-09-0159-16.
             Joseph E. Krakora, Public Defender, attorney for
             appellant (Adrienne Kalosieh, Assistant Deputy Public
             Defender, on the briefs).

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

             Joseph E. Krakora, Public Defender, Law Guardian,
             attorney for minor (Meredith Alexis Pollock, Deputy
             Public Defender, of counsel; Joseph H. Ruiz,
             Designated Counsel, on the brief).

PER CURIAM

      Defendant A.L.1 appeals from the Family Part's January 11, 2018

judgment of guardianship terminating his parental rights to his son, D.L., born

in December 2012. 2 Defendant contends that the Division of Child Protection

and Permanency (Division) failed to prove each prong of N.J.S.A. 30:4C-15.1(a)

by clear and convincing evidence. The Law Guardian supports the termination

on appeal as it did before the trial court.



1
  Pursuant to Rule 1:38-3(d), we use initials and fictitious names to protect the
confidentiality of the participants in these proceedings.
2
  The child's mother, S.L., voluntarily surrendered her parental rights to her
brother Aaron, the maternal uncle, for a second time on January 26, 2017, as
more fully detailed in this opinion. He also has custody of two of her other six
children. Therefore, S.L. is not a party to this appeal.
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                                          2
      Based on our review of the record and applicable law, we are satisfied that

the evidence in favor of the guardianship petition overwhelmingly supports the

decision to terminate defendant's parental rights.     Accordingly, we affirm

substantially for the reasons set forth in Judge Bernadette N. DeCastro's

comprehensive written decisions, and for the reasons stated in this opinion.

      D.L. has been in the Division's custody since May 1, 2014, pursuant to a

Dodd removal.3 He was taken from his mother's care and hospitalized after his

maternal aunt found him covered with bruises. S.L. and her boyfriend, who was

cohabitating with her, were found unconscious from intoxication. Both were

charged and incarcerated for child abuse and neglect. At the time, A.L. was

incarcerated in Pennsylvania for a parole violation emanating from a driving

while intoxicated charge.

      Initially, the Division worked toward reunification with both parents.

A.L. and S.L. have another child together, A.L., Jr., born in February 2011, who

was in the custody of A.L.'s mother until he regained custody in August 2017.

A.L. also has a daughter who has been in the custody of her maternal

grandparents since she was nine months old.


3
  A Dodd removal is an emergent removal of a minor without a court order
pursuant to N.J.S.A. 9:6-8.21 to -8.82, known as the Dodd Act. N.J. Div. of
Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011).
                                                                         A-3384-16T3
                                       3
      In July 2014, A.L. informed the Division that he was being transported to

another facility due to his "psychiatric condition." Visitation with D.L. was

sporadic, but resumed a few months later when A.L. was transferred to a halfway

house in Pennsylvania. In January 2015, A.L. was admitted to NET Transitional

House in Philadelphia to continue his recovery and rehabilitation. He exhibited

inappropriate behavior and was medicated for obsessive-compulsive disorder

and anxiety. D.L. was placed in his second resource home in March 2015. In

April 2015, A.L. advised the court and Division that he wished to surrender his

parental rights to D.L., and he refused visitation until November 2015. After

two months of visits at the Division's office, he lost contact again from January

2015 until April 2016. In the meantime, A.L. was charged with a violation of

probation after being charged with possession of a Controlled Dangerous

Substance with intent to distribute.

      Dr. Joel Nunez conducted a psychological evaluation of A.L. in December

2015 and confirmed those diagnoses, and also diagnosed A.L. with attention

deficit hyperactivity disorder (ADHD). Dr. Nunez recommended supervised

visitation, parenting skills courses, and substance abuse screening with

treatment. In November 2015, A.L. admitted to caseworker Chrisann Josiah that

he was involved in a new relationship, and his girlfriend did not want to deal


                                                                         A-3384-16T3
                                       4
with   the   complicated   issues   regarding   his   children.   Despite    the

recommendations, A.L. only attended mental health services infrequently. He

failed to attend parenting classes at Kids First because he claimed he already

completed the course. The next visit was not until April 2016 because A.L. did

not want contact with the Division. He did not participate in the November 3,

2016 hearing. The child lived in a resource home until December 2016 when he

was placed with Aaron, who wants to adopt him.

       Dr. Larry Dumont was retained by the Division to perform a psychiatric

evaluation of A.L. Dr. Dumont opined that A.L. had a "great deal of instability

. . . [in his] living situation," and that he was not "fully able or capable of

assuming the parenting mantle," noting that A.L. had good intentions, however,

such intentions "do not necessarily indicate that the follow through will be

optimal." The expert further cautioned that it would be "premature to have

[A.L.] assume guardianship of his infant child"; and that it is "ironic and

concerning" that A.L.'s mother has custody of A.L., Jr., but [A.L.] had not seen

his son in seven months." A.L. told Dr. Dumont that "pain pills were his drug

of choice." Thus, Dr. Dumont concluded that A.L. does not have "the most

stable environment."




                                                                        A-3384-16T3
                                       5
         At the permanency hearing held on April 21, 2016, Judge DeCastro

terminated parental rights, finding that the parents were incapable of caring for

D.L. A month later, A.L. was advised to be hospitalized for opioid use but he

refused.4 He began counseling and parenting classes.

         On August 2, 2016, A.L. was granted limited custodial rights of his older

son by a Pennsylvania court. During a telephonic case management conference

on September 8, 2016, A.L. advised Judge DeCastro that he had unsupervised

parenting time with A.L., Jr. every Sunday.

         A new caseworker, Alexandra Massaro, was assigned to this matter in

September 2016. During a visit that month, A.L. complained to her that he

wanted to end early because he was "psychic" and "had a sixth sense that his son

was bored." A.L. expressed indifference about D.L. being in his care; simply

wanted to "move on with [his] life"; and he grew tired of "coming up here for

this."

         The Division's expert psychologist, Dr. Gerard Figurelli, conducted a

psychological evaluation of A.L. in October 2016 in order to evaluate his

parenting ability. A.L. informed Dr. Figurelli that he had a history of bipolar

disorder, "discrete episodes of depression," and being "hyper." Anger issues led


4
    A.L. was prescribed Suboxone for his opioid addiction.
                                                                          A-3384-16T3
                                         6
to A.L. throwing things, and punching windows and brick walls. The evaluation

revealed that, "A.L. lacks an understanding of the nature and severity of his

psychiatric illnesses," and psychological testing showed he had a borderline

personality trait with regard to his overall "organization and functioning of his

personality."

      A.L. did not participate in the November 3, 2016 hearing. Nonetheless,

he retained Dr. Barry A. Katz to perform a psychological evaluation. Dr. Katz

opined that A.L. has a "good understanding of child growth and development"

and a "validity profile" that is "associated with a cry for help, and [an] individual

who feels overwhelmed and is looking to call attention to themselves and their

problems."      Secondary problems were described by Dr. Katz as, "distrust,

avoidant, and passive-aggressive behaviors," as well as "antisocial behaviors,

narcissism . . . and alcohol dependence."

      Prior to the January 19, 2017 guardianship trial, A.L. called Massaro a

"liar" at a visit, and accused her of leaving him stranded in New Jersey after a

visit. She testified that he appeared agitated, and he yelled at her, causing D.L.

to become frightened and cling to her leg. D.L. repeated A.L.'s words that,

"daddy was going to call the police on [Massaro]."




                                                                             A-3384-16T3
                                         7
      Five witnesses, including two expert witnesses, testified during the three

day trial.   Judge DeCastro issued a written opinion on March 30, 2017,

terminating A.L.'s parental rights and awarding guardianship of D.L. to the

Division. The judge found Dr. Figurelli to be a credible witness, and Dr. Katz

unreliable. Dr. Figurelli addressed A.L.'s problems with impulse control and

aggression, which are not conducive to a stable home environment. Even A.L.'s

own expert, Dr. Katz, opined that A.L. met the criteria for a schizoid personality

disorder and exhibited symptoms associated with manic aspects of bipolar

disorder along with lingering issues as to his parenting ability. In fact, Dr. Katz

recommended that A.L. complete reunification therapy and submit to another

evaluation prior to considering unsupervised visits.

      Expert testimony established that removal from his resource parent ,

Aaron, would cause D.L. serious and enduring harm, while termination of A.L.'s

parental rights would cause D.L. no harm. Dr. Katz never addressed D.L.'s need

for permanency.

      A.L. filed an appeal on April 18, 2017. Thereafter, a Pennsylvania court

granted A.L. primary custody of A.L., Jr. on June 23, 2017, and sole legal and

physical custody on August 15, 2017. This court denied A.L.'s appeal to vacate

the March 30, 2017 judgment and remanded the matter to the trial court to


                                                                           A-3384-16T3
                                        8
determine whether the change in custody of A.L., Jr. constituted newly

discovered evidence under Rule 4:50-1. A hearing was held on this issue on

November 4, 2017.

      Due to a report filed by Pennsylvania Child Protective Services regarding

safety violations, D.L. was removed from Aaron's home on October 16, 2017,

and placed in a resource home in New Jersey. On November 14, 2017, the

Division appealed to this court seeking a remand to ascertain if the removal

impacted the trial court's analysis of prong four of the best interest standard and

the request was granted. After a two-day remand hearing on this issue, Judge

DeCastro vacated S.L.'s surrender of parental rights due to D.L.'s recent removal

from Aaron's care and reinstated her as a party.

      In a ten page written opinion dated January 11, 2018, the judge denied

A.L.'s application to vacate her March 30, 2017 order terminating his parental

rights and addressed the Division's remand issue. A.L. did not present any

additional testimony at the first remand hearing, and only limited testimony at

the second remand hearing.       He simply relied upon the two Pennsylvania

custody orders addressing custody of A.L., Jr., and the fact that D.L. was no

longer residing with Aaron.

      Judge DeCastro concluded:


                                                                           A-3384-16T3
                                        9
            Even if this [c]ourt finds that defendant met the
            first[]part of the test under R[ule] 4:50-1, defendant
            fails to meet the second part of the two-part test that it
            would be in the child's "best interest" to vacate the
            judgment. This [c]ourt finds to the contrary that it is
            not in the child's best interest to prolong his
            permanency until and if his father complies with
            services and demonstrates that he has benefited from
            them.

      Both the Division and Law Guardian strongly opposed A.L.'s motion to

vacate the judgment, arguing that the Pennsylvania record was incomplete, and

A.L. had not demonstrated changed circumstances with regard to his inability to

benefit from services. Thus, no additional evidence was presented regarding

these issues. The judge further concluded:

            As far as the changed circumstances by the removal of
            the child from his foster-parent and the impact it has on
            this [c]ourt's finding as to [p]rong [f]our, this court
            relies upon the testimony of Dr. Figurelli that D.L.
            needs permanency and cannot be reunified with [A.L.]
            now or in the foreseeable future because despite having
            made efforts to engage in services, the same issues
            remain to the impediments to obtaining custody,
            namely instability and incapacity to adequately and
            safely parent his son due to both psychiatric and
            personality disorders.

      In her written opinions, Judge DeCastro reviewed the evidence presented

and thereafter concluded that: (1) the Division had proven all four prongs of the

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


                                                                         A-3384-16T3
                                       10
(2) termination of defendants' parental rights was in D.L.'s best interest. Relying

upon In re J.N.H., 172 N.J 440, 474 (2002), the judge found that A.L. failed to

meet the second part of the two-pronged test. The judge's analysis was correct.

      In this appeal, our review of Judge DeCastro's decisions is limited. We

defer to her expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394,

413 (1998), and we are bound by her factual findings so long as they are

supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs.

v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J.

Super. 172, 188 (App. Div. 1993)). A.L. did not proffer any evidence he poses

no harm to D.L., initially or at the remand hearings.           Expert testimony

established that A.L. would be unable to care for D.L., and that he had a

paramount need for a permanent home with a capable parent. Further, Dr.

Figurelli addressed A.L.'s lengthy history of mental health services.5 For the




5
   A.L. participated in mental health treatment at NHS, in Pennsylvania, from
age twelve to age thirty-two. He was treated for ADHD and bipolar disorder,
and was provided individual psychotherapy and treatment with psychotropic
medication. A.L. was hospitalized for thirty days at First Hospital of Wyoming
in 2002, and at Mary Community Hospital from 2003 to 2004 for psychiatric
services. He reported having "a lot on [his] mind" and needing to "get away"
during a custody battle. He was also involved in mental health services from
2014 to September 2016 at Mary Howard Clinic.
                                                                           A-3384-16T3
                                       11
reasons stated by Judge DeCastro, we agree that termination of A.L.'s parental

rights is in D.L.'s best interest.

      "Inability to provide a stable and protective home" for children is highly

relevant to whether a parent "can cease to inflict harm" on them. N.J. Div. of

Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 117, 118 (App. Div. 2004).

Further, a key issue is whether the parent "can become fit to assume the parental

role within time to meet the child's needs." N.J. Div. of Youth and Family Servs.

v. L.J.D., 428 N.J. Super. 451, 479 (App. Div. 2012) (internal citations omitted).

      A.L.'s continuing failure to provide D.L. with housing and his

psychological inability to parent him, harmed D.L. by causing him to remain in

foster care for several years. See N.J. Div. of Youth and Family Servs. v. R.G.,

217 N.J. 527, 556-57 (2014) (citing In re Guardianship of K.H.O., 161 N.J. 337,

348-49 (1999)). A.L.'s other arguments do not warrant further discussion. R.

2:11-3(e)(1)(E).

      After reviewing the record, we conclude that Judge DeCastro's factual

findings are fully supported by the record and, in light of those facts, her legal

conclusions are unassailable for the reasons that the judge expressed in her well-

reasoned opinions.

      Affirmed.


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                                       12
