                                     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                                NOT FOR PUBLICATION WITHOUT THE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-0957-16T4
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

         Plaintiff-Respondent,

v.

J.M.,

         Defendant,

and

F.A.,

     Defendant-Appellant.
________________________________

IN THE MATTER OF THE
GUARDIANSHIP OF F.A. and K.A.,

     Minors.
________________________________

                   Submitted October 17, 2018 – Decided November 9, 2018

                   Before Judges Fuentes, Accurso and Vernoia.
              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Sussex County,
              Docket No. FG-19-0026-14.

              Joseph E. Krakora, Public Defender, attorney for
              appellant (John A. Albright, Designated Counsel, 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 minors (Danielle Ruiz, Designated
              Counsel, on the brief).

PER CURIAM

        Defendant F.A., who represented himself at trial with appointed stand-by

counsel, appeals from the final judgment terminating his parental rights to two

of his children, Felix, now eleven years old, and Kayla, now almost ten.1 He

contends the Division of Child Protection and Permanency failed to prove each

of the four prongs of the best interests standard of N.J.S.A. 30:4C-15.1(a)(1)-

(4) by clear and convincing evidence. The Law Guardian joins with the Division

in urging we affirm the judgment. Having considered defendant's arguments in




1
    These names are fictitious to protect the children's identities.
                                                                        A-0957-16T4
                                          2
light of the record and controlling law, we affirm the termination of his parental

rights to Felix and Kayla.

      The facts are fully set forth in Judge Wright's comprehensive twenty-nine

page opinion, and need not be repeated here. We note only that the Division

removed Felix and Kayla in 2013 from the home F.A. shared with the children's

mother, J.M., after both had been arrested for drug offenses and J.M. tested

positive for opiates. J.M. voluntarily surrendered her parental rights to these

children before trial in 2015 in order to permit her parents to adopt them.

Accordingly, the Division proceeded against F.A. alone. At the time of trial,

F.A. had been in jail for over a year awaiting trial on charges of first-degree

bank robbery.

      In addition to the testimony of the case workers and experts called by the

Division and the Law Guardian, the court heard from several other witnesses,

including two of J.M.'s children from a prior marriage, a seventeen-year-old

daughter called by the Division and a sixteen-year-old son called by F.A. Felix,

then eight-years-old, testified in camera.

      J.M.'s older children, who spent three or four days a week and every other

weekend in their mother and F.A.'s home over several years, painted a picture

of an increasingly chaotic environment following, first their mother's and then,


                                                                         A-0957-16T4
                                        3
F.A.'s descent into heroin use. J.M.'s older daughter described finding needles

and glassine envelopes with "little fish on them" stamped with the words "red

funeral or dead funeral" all over the house. She recalled her mother and F.A.

locking themselves in the bathroom or their bedroom while Felix and Kayla

banged on the door begging to be let in, only to emerge altered and unable to

care for the preschoolers.

      Both of J.M.'s older children testified they tried to pick up the slack,

feeding, bathing and comforting their younger half-siblings.            But both

acknowledged they would come home from school to find the younger children

playing outside unsupervised, sometimes in the road, and often inappropriately

dressed for the weather. They also related the domestic violence they witnessed,

including loud arguments between their mother and F.A., ending in him pushing

or punching her, and F.A.'s repeated beatings of Felix.

      When F.A. asked J.M.'s older daughter on cross-examination whether she

understood the difference between discipline and abuse, the seventeen-year-old

replied:

            I do. The difference between discipline and abuse is
            discipline is when you're trying to teach your kids . . .
            right from wrong. A smack on the hand, a smack on
            the butt. Abuse is when you leave marks, when you
            leave bruises, when you traumatize the kid so much to
            the point where he's afraid of you when you speak.

                                                                         A-0957-16T4
                                       4
            Specifically, [Felix]. You know, [Felix] would have
            hand marks on his behind, on his back. His arm would
            have bruises from the way you grabbed him. That's
            abuse. That's — that's not discipline.

J.M.'s son testified that when he was fourteen, he drank and smoked marijuana

with F.A. Although called as F.A.'s witness and emotional about past fishing

trips and bike rides, the boy confirmed his sister's account of his mother's and

F.A.'s drug use and F.A.'s frequent beatings of Felix.

      The Law Guardian's expert, Frank Dyer, testified to the psychological

evaluation he conducted of F.A. and the bonding assessment he performed of

F.A. with Felix and Kayla, as well as the bonding assessment he conducted of

the children with their maternal grandparents, with whom they were then living.

Dr. Dyer testified to his opinion that F.A. "has a prominent antisocial dimension

to his personality" and "a lower than normative threshold for aggression." He

explained it was F.A.'s

            position that he has really done nothing wrong, nothing
            blame-worthy; that the children were removed for
            unjust reasons; that he has been wrongly accused of a
            number of offenses, even offenses for which he,
            ultimately, served jail or prison time; and that, in a
            sense, he is a victim in this whole affair, without taking
            any sort of blame or acknowledging his sort of
            responsibility for the impact of his behavior on others.

Dr. Dyer opined that F.A.'s


                                                                         A-0957-16T4
                                        5
            degree of denial far and away exceeds the normal
            degree of denial found in individuals who have an
            antisocial aspect to their personality, and that this
            degree of blatant denial, in the face of overwhelmingly
            contradictory evidence, points to this characteristic of
            loosely organized, eccentric, obscure, and thought
            processes that are not particularly related to reality.

      Regarding the bonding assessment he conducted between F.A. and the

children, Dr. Dyer reported that both Felix and Kayla, then seven and five, "were

oppositional and negativistic" toward their father, refusing his offers of physical

affection. Dr. Dyer found no existing bond between the children and their father,

in stark contrast to the warm and loving relationship he observed between the

children and their maternal grandparents. It was Dr. Dyer's opinion that F.A.

"does not possess adequate parenting ability at the present time" because he "is

not able to place the needs of his children above his own needs," "not able to

appreciate the impact that his behavior has had on them; and that his

characteristic irresponsibility, which relates to the antisocial dimension of his

personality" the doctor "assessed, would prevent [F.A.] from being able to meet

their needs in any kind of consistent manner."

      Dr. Dyer concluded by testifying that the children would not suffer any

harm by the court's termination of F.A.'s parental rights, and that, instead, it

would be a "net positive" for both children. Removing them, however, from the


                                                                          A-0957-16T4
                                        6
loving and stable home of their grandparents would, in his view, result in severe

long-term harm to both Felix and Kayla. Dr. Dyer dismissed F.A.'s allegations

that the children had been coached, describing "the reactions of the two

children" to F.A. to be "at the extreme negative end" of all the parental rights

cases in which he had been involved. He attributed the children's reactions to

their previous attachment to F.A., explaining he "was once a hero to these

children." F.A.'s heroin addiction, however, extinguished the children's good

feelings, and his resultant unreliability and mistreatment of them led to their

becoming "emotionally disengaged."

      Dr. Herschman, the Division's expert, echoed Dr. Dyer's views of F.A.

and the bond between the children and their grandparents. Dr. Herschman,

however, did not conduct a bonding assessment of F.A. and his children because

she was scheduled to do so after Dr. Dyer. Given the very negative reaction of

the children to F.A. during Dr. Dyer's bonding assessment, she and the Division

determined it was not in the children's best interests to subject them to another

session with their father so soon thereafter. She testified in response to cross-

examination by F.A. that a kinship legal guardianship would not be in the

children's best interest because of their "strong need for permanency."




                                                                          A-0957-16T4
                                       7
      F.A. testified in his own behalf. He claimed he used heroin from 2000

until 2005, shortly before he met J.M., but did not use again until after the

Division removed the children in 2013. He claimed he was a good father from

when Felix and Kayla were born through their removal in 2013, that he never

consumed drugs in their presence or beat them and always provided them a safe

home environment.       He testified the services the Division provided were

directed at providing him parenting skills, which he did not need as he was

already a capable parent, and that he was refused drug treatment because of his

inability to get a ride to two sessions.

      As to his alleged drug use, F.A. acknowledged a hair follicle test he took

several months after the children were removed was positive, but claimed it did

not prove he had ever used drugs while the children were in his care. He

maintained the allegations that he used drugs while the children lived with him

and beat Felix were manufactured for trial. He posited the children testified

against him because they, wrongly, blame him for their mother's heroin

addiction.

      F.A. acknowledged his seven prior indictable convictions, dating from

2000 to 2008, and testified on cross-examination that he expected the seven

indictments he was then facing would be resolved within a year, thus permitting


                                                                        A-0957-16T4
                                           8
him to resume care of Felix and Kayla. Noting his repeated request that the

children's maternal grandparents assume custody of the children in a kinship

legal guardianship, F.A. asserted "[t]here's no difference between them staying

with their grandparents in permanent custody or them staying with them in a

KLG until we [F.A. and J.M.] are able to take the children back."

      Applying the statutory factors, N.J.S.A. 30:4C-15.1(a)(1)-(4), to the facts

adduced at trial, Judge Wright entered a judgment terminating F.A.'s parental

rights. The judge concluded there was no question but that F.A.'s "criminal

activity and ongoing incarceration" as well as "his ongoing heroin addiction"

pose a significant danger to Felix and Kayla's health and development. The

judge found F.A. had not been able to care for either child for a considerable

period and even if released in the near future, an unlikely prospect, could not do

so because of his utter failure to acknowledge the children's needs or understand

"their fear of him and desire to be with their maternal grandparents."

      Judge Wright found F.A. remains "in significant denial regarding the

impact his substance abuse, physical abuse and criminal behavior have on his

children." He concluded F.A. was unable and unwilling to abate the harm he

caused Felix and Kayla, noting his refusal to engage in the services the Division

offered or get the drug treatment he needs. Focusing on the drug treatment


                                                                         A-0957-16T4
                                        9
offered by the Division, the judge noted F.A. "sought to thwart hair follicle

testing by shaving all the hair from his body prior to the scheduled test" and

attended only one session of the substance abuse counseling the Division

arranged.

      The judge noted F.A.'s "testimony was remarkable in that he absolutely

accepts no culpability for, or even recognizes how his behaviors harmed the

children." Relying on the unrebutted opinion of the experts who testified, the

judge concluded F.A. failed to avail himself of the treatment offered because he

"simply does not accept that he has any problems to correct."          The judge

accepted the opinion of the experts that delaying resolution was counter to the

permanency the children desperately needed and that KLG was not in the

children's best interests. Again relying on the opinions of the experts, the judge

found further delay would only exacerbate the harm the children had suffered.

He rejected KLG as an option because, besides being contraindicated by the

experts, the maternal grandparents had expressed a willingness to adopt.

      Finally, Judge Wright found the Division proved clearly and convincingly

that termination of F.A.'s parental rights will do no harm to Felix and Kayla and

much good. Significantly, the Division's expert found no existing bond between

them and F.A. In contrast, both experts testified that separating the children


                                                                         A-0957-16T4
                                       10
from their maternal grandparents at this point will do them lasting damage. The

judge found that only freeing the children for adoption by their grandparents

will "provide the continuity, stability and consistency these children need."

      F.A. appeals, raising the following several arguments under a single point

heading:

            THE JUDGMENT OF GUARDIANSHIP AGAINST
            F.A. SHOULD BE REVERSED BECAUSE
            TERMINATION OF PARENTAL RIGHTS IS NOT
            CLEARLY AND CONVINCINGLY IN THE "BEST
            INTERESTS" OF F.A. III AND K.A. UNDER N.J.S.A.
            30:4C-15.1A.

            A.     The trial court erred in holding that DCPP proved
            the first prong, that F.A. harmed F.A. III, and K.A. or
            would continue to endanger them, by clear and
            convincing evidence.

                        1.     The lower court erroneously relied
                   on unpled allegations of physical abuse and
                   neglect of F.A. III and K.A., of which F.A. had
                   no advance notice, to support its conclusion that
                   prong one was satisfied, resulting in a due
                   process violation.

                        2.    Contrary to the lower court's
                   conclusion, there was no evidence presented that
                   F.A. was using heroin before the children's
                   removal, or that such use harmed the children or
                   placed them at risk.

                        3.     The lower court erred in relying on
                   F.A.'s arrests and incarceration as a basis for
                   termination of his parental rights because it did

                                                                         A-0957-16T4
                                      11
       not perform the requisite broad analysis under
       N.J. Div. of Youth & Fam. Servs. v. S.A., 382
       N.J. Super. 525 (App. Div. 2006).

B.    The trial court erred in holding that DCPP proved
the second prong of the "best interests" termination test
by clear and convincing evidence.

C.    The trial court erred in holding that DCPP proved
the third prong of the "best interests" termination test
against F.A. by clear and convincing evidence.

            1.     The court's consideration of kinship
       legal guardianship was legally incomplete and
       insufficient to establish that it properly
       considered alternatives to termination of
       parental rights.

                   a.   The court's inquiry into the
            statutory KLG factors was utterly
            incomplete.

                  b.   Clear and convincing evidence
            did not establish that adoption by the
            maternal grandparents was "feasible" and
            "likely."

            2.    The record does not clearly and
       convincingly establish the reasonableness of
       DCPP's efforts to correct the circumstances
       which led to the improvident removal of the
       children.

D.     The trial judge erred in holding that DCPP proved
the fourth prong of the "best interests" termination test,
that termination will not do more harm than good by
clear and convincing evidence.


                                                             A-0957-16T4
                           12
     We find no merit in those arguments and affirm substantially for the

reasons set forth in Judge Wright's comprehensive written opinion of October

14, 2016.

     Affirmed.




                                                                    A-0957-16T4
                                    13
