                                      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                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0822-18T3
                                                                     A-0823-18T3

NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,

          Plaintiff-Respondent,

v.

T.E. and E.C.,

          Defendants-Appellants,

and

R.B.,

          Defendant.

IN THE MATTER OF THE
GUARDIANSHIP OF L.L.T.,
M.R.B., N.T.B., A.S.C., and
H.Y.C.,

          Minors.


                    Submitted October 8, 2019 – Decided November 12, 2019
            Before Judges Gilson and Rose.

            On appeal from the Superior Court of New Jersey,
            Chancery Division, Family Part, Camden County,
            Docket No. FG-04-0162-18.

            Joseph E. Krakora, Public Defender, attorney for
            appellant T.E. (Beryl Vernen Foster-Andres,
            Designated Counsel, on the brief).

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

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

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minors L.L.T., N.T.B., and A.S.C. (Linda
            Vele Alexander, Designated Counsel, on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor M.R.B. (Margo E.K. Hirsch,
            Designated Counsel, of counsel and on the brief).

            Joseph E. Krakora, Public Defender, Law Guardian,
            attorney for minor H.Y.C. (Joseph Hector Ruiz,
            Designated Counsel, on the brief).

PER CURIAM

      In these consolidated appeals, T.E. (Tammy) and E.C. (Eric) appeal from

a judgment terminating their parental rights to five children and granting the


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                                      2
Division of Child Protection and Permanency (Division) guardianship of the

children, with the plan that the children be adopted. 1 Tammy and Eric argue

that the Division failed to establish by clear and convincing evidence the four

statutory requisites for termination of parental rights. N.J.S.A. 30:4C-15.1(a).

Eric also contends that one of the trial court's findings was the result of

ineffective assistance of counsel. The Division and the children's law guardians

urge that we affirm the judgment and allow the adoptions to proceed. Having

reviewed the record in light of the parties' contentions and applicable law, we

affirm substantially for the reasons explained by Judge Francine Axelrad in her

comprehensive opinion read into the record on October 4, 2018.

         The facts and evidence were detailed in Judge Axelrad's opinion, which

she rendered after a trial. Accordingly, we need only summarize some of the

facts.

         Tammy is the mother of eleven children, none of whom are currently in

her care. These consolidated appeals involve five children. Tammy and R.B.

(Robert) are the biological parents of three of those children: L.T. (Leah), born

in February 2006; M.B. (Marcus), born in March 2007; and N.B. (Natalie), born



1
   We use initials and fictitious names for the parents and children to protect
their privacy and the confidentiality of the record. See R. 1:38-3(d)(12).
                                                                         A-0822-18T3
                                        3
in July 2008. Tammy and Eric are the biological parents of the other two

children: A.C. (Alison), born in December 2013; and H.C. (Henry), born in June

2015. While the guardianship judgment also terminated the parental rights of

Robert, he did not attend the trial and he has not appealed the judgment.

      Testing has shown that Tammy has low cognitive abilities. She also has

a long history of involvement with the Division, dating back to 2001. The

Division has responded to numerous reports of Tammy's inability to care for her

children, including medical neglect, neglect of her children's developmental

needs, inability to protect the children from abuse by other adults, exposing the

children to domestic violence, and placing the children in unsanitary living

conditions.

      The Division has also responded to issues involving Eric. The Division

received reports that Eric committed domestic violence against Tammy,

physically abused the children, and sold drugs in front of the family home. The

Division was also concerned that Eric placed the children at risk by leaving them

with Tammy when he was arrested and incarcerated for selling drugs. The

children's safety plan provided that they were not to be left unsupervised with

Tammy, and Eric did not notify the Division that he was no longer able to

supervise Tammy.


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                                       4
      During 2015 and 2016, the children were in and out of the custody of

Tammy and Eric. Since 2017, all five of the children have been in the custody

of the Division because the Family court found that neither Tammy nor Eric was

able to adequately care for the children.

      In April 2018, the Division filed a complaint for guardianship and a trial

was conducted in September and October 2018. At trial, the Division submitted

numerous exhibits into evidence and called two witnesses: a Division worker

and Dr. Linda R. Jeffrey, Ph.D., an expert in psychology. Eric also testified at

trial, but Tammy elected not to testify. Neither Eric nor Tammy called any

witnesses.

      Dr. Jeffrey evaluated both Tammy and Eric. She also performed bonding

evaluations on all five children. In connection with her psychological evaluation

of Tammy, Dr. Jeffrey performed various cognitive tests and found that

Tammy's mental abilities were "well below average . . . ." She opined that

Tammy was emotionally immature, had poor insight and judgment, and could

not provide a safe level of parenting for the children.

      Having evaluated Eric, Dr. Jeffrey formed diagnostic impressions that

Eric had parent-child relational problems, adjustment disorder, and features of

antisocial borderline personality disorder. She opined that Eric's unresolved


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                                        5
issues meant he could not provide a minimal level of safe parenting. Dr. Jeffrey

also opined that it would take two to three years for Eric to be able to provide a

minimum level of care for his children.

      In her bonding evaluations, Dr. Jeffrey found that none of the five children

had a secure parental bond with either Tammy or Eric. Consequently, Dr.

Jeffrey opined that none of the children should be placed in the custody of

Tammy or Eric, even though Leah, Marcus, Natalie and Alison did not have

identified adoptive homes at the time of the trial. Finally, Dr. Jeffrey opined

that given the children's insecure or non-existent attachment to Tammy and Eric,

none of the children would be seriously harmed by termination of the parental

rights of Tammy and Eric.

      After listening to the testimony of the witnesses, Judge Axelrad found that

the Division worker and the Division's expert were credible and their testimony

was supported by and consistent with the documents submitted into evidence.

Judge Axelrad then made extensive findings concerning the history of neglect

and abuse, the Division's effort to assist Tammy and Eric, the Division's efforts

to find alternatives to termination of the parental rights, and the children's

current circumstances. Judge Axelrad found that the Division had proven by




                                                                          A-0822-18T3
                                        6
clear and convincing evidence all four prongs necessary for termination of

parental rights under N.J.S.A. 30:4C-15.1(a).

      With regard to prong one, Judge Axelrad found that the children had been

harmed and were at risk of harm because of the actions and inactions of Tammy

and Eric. She based that finding on evidence that Eric had engaged in domestic

violence against Tammy, Eric had physically abused at least one of the children,

Tammy had not protected the children from abuse, Eric had left the children

with Tammy knowing that she could not safely parent the children by herself,

and Eric had sold drugs outside the family's home, which resulted in his arrest

and incarceration.

      Concerning prong two, Judge Axelrad relied on Dr. Jeffrey's testimony

that both Tammy and Eric had failed, and would continue to fail, to provide a

safe and stable home for the children. Judge Axelrad also noted that a delay in

permanent placements for the children would result in further harm to the

children.

      Turning to prong three, Judge Axelrad found clear and convincing

evidence that the Division made reasonable efforts to provide both Eric and

Tammy with services to help them remedy the circumstances that led to the

removal of the children. Judge Axelrad went on to find that neither Tammy nor


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                                       7
Eric had used those services effectively. In addition, Judge Axelrad found that

the Division considered alternatives to termination of parental rights and

determined that no reasonable alternatives existed.

      Finally, with regard to prong four, Judge Axelrad again relied on the

unrebutted testimony of Dr. Jeffrey that termination of Tammy's and Eric's

parental rights would not do more harm than good. In making that finding, the

judge relied on the testimony of Dr. Jeffrey that the three older children had

insecure attachments to Tammy and Eric, and the two younger children had no

psychological attachments to Eric or Tammy. Judge Axelrad also appropriately

considered that the four older children did not yet have identified adoptive

homes, but relied on Dr. Jeffrey's testimony that, even under those

circumstances, returning the children to the custody of Eric or Tammy would

not be in the children's best interest.

      Tammy and Eric argue that the trial court erred in finding each of the four

prongs under the best-interests test. In particular, they challenge the court's

findings under prongs two and three. We are not persuaded by the arguments of

either Tammy or Eric.

      Each of Judge Axelrad's findings concerning the four prongs is supported

by substantial, credible evidence. See N.J. Div. of Youth & Family Servs. v.


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                                          8
F.M., 211 N.J. 420, 448 (2012) (quoting N.J. Div. of Youth & Family Servs. v.

M.M., 189 N.J. 261, 279 (2007)).           Moreover, Judge Axelrad correctly

summarized the law and correctly applied her factual findings to the law. See

N.J. Div. of Child Prot. & Permanency v. P.O., 456 N.J. Super. 399, 407 (App.

Div. 2018). Judge Axelrad appropriately relied on the unrebutted testimony of

Dr. Jeffrey who conducted a number of evaluations and had a factual basis for

her opinions. In that regard, our Supreme Court has noted: "In a termination of

parental rights trial, the evidence often takes the form of [expert testimony] by

psychiatrists, psychologists, and other mental health professionals." N.J. Div.

of Child Prot. & Permanency v. R.L.M., 236 N.J. 123, 146 (2018).

      Finally, we reject Eric's argument that his counsel was ineffective. Eric

contends that he was prejudiced by his attorney's failure to notify Judge Axelrad

that a prior judge directed the Division to change a prior finding of

substantiation from "established" to "not established." That finding related to

the incident where Eric was arrested for selling drugs outside the family home

and the Division determined that he violated a safety protection plan by leaving

Tammy unsupervised with the children.

      Parents are entitled to effective assistance of counsel when they are

charged with abuse or neglect or when the Division seeks to terminate their


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                                       9
parental rights. N.J. Div. of Youth and Family Servs. v. B.R., 192 N.J. 301, 308

(2007); N.J. Div. of Child Prot. & Permanency v. G.S., 447 N.J. Super. 539, 555

(App. Div. 2016). In evaluating a claim of ineffective assistance of counsel, our

Supreme Court has adopted the test set forth in Strickland v. Washington, 466

U.S. 668, 687 (1984). B.R., 192 N.J. at 307-08. Accordingly, a defendant

claiming ineffective assistance of counsel must establish both that (1) counsel's

performance was deficient; and (2) defendant was prejudiced by counsel's

deficient performance. Strickland, 466 U.S. at 687.

      Here, there is no showing that Eric was prejudiced by counsel's

performance. In making her findings, Judge Axelrad did find that Eric had

exposed the children to harm when he was arrested for selling drugs and thereby

left the children unsupervised in the care of Tammy. That finding, however,

was only one of several findings supporting the termination of Eric's parental

rights. Thus, Eric has not shown that the termination of his parental rights

should be reversed on the grounds of ineffective assistance of counsel.

      Affirmed.




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