DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.N.

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                        NOT FOR PUBLICATION WITHOUT THE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-1352-16T4

NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,

        Plaintiff-Respondent,

v.

J.N.,

        Defendant-Appellant,

and

C.M.,

     Defendant.
____________________________________

IN THE MATTER OF THE
GUARDIANSHIP OF V.N.,

     a Minor.
____________________________________

              Submitted March 13, 2018 – Decided June 7, 2018

              Before Judges Fasciale, Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Burlington
              County Docket No. FG-03-0057-15.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Patricia Nichols, Assistant
            Deputy Public Defender, of counsel and on the
            brief).

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

            Joseph E. Krakora, Public Defender, Law
            Guardian, attorney for minor (Lisa M. Black,
            Designated Counsel, on the brief).

PER CURIAM

      Defendant   J.N.    (Jake)1   appeals    the    Family    Part's     order

terminating his parental rights to his then five-year-old son,

V.N. (Vic).2 Jake contends that he was denied effective assistance

of counsel; that the court failed to adjudicate various motions

he filed; that the court erred in denying his motion to dismiss

the Division of Child Protection and Permanency's (the Division)

guardianship complaint; and that the court failed to set forth

factual findings and conclusions of law to establish that the

Division proved all four prongs of the best-interests-of-the-child

standard,    
N.J.S.A.    30:4C-15.1(a).       The    Division   and   the     Law

Guardian argue that the order should be affirmed.           After reviewing

the record in light of the applicable legal standards, we affirm.




1
    Pseudonyms are used for privacy and for ease of reference.
2
   The order also terminated the parental rights of Vic's mother,
C.M. (Callie), who has not appealed.

                                     2                                   A-1352-16T4
     The pertinent evidence and relevant procedural history was

set forth in Judge Patricia Richmond's comprehensive sixty-seven

page oral decision.   A summary will suffice here.    In 2012, when

Vic was just eleven months old, Jake, a self-described Romanian

gypsy, was arrested in Michigan for drug possession, retail fraud,

and assault with a dangerous weapon.    He was later convicted –

with a maximum sentence to expire in May 2027 – and has remained

incarcerated throughout this proceeding.    After Jake's arrest,

Vic's custody defaulted full-time to his mother, Callie.        That

however lasted a little less than two years.

     On March 23, 2014, Callie, living in Massachusetts at the

time, had left Vic in the care of Jake's parents, who lived in New

Jersey, when police pulled over their erratically driven car at

2:00 a.m. in Mount Laurel.    Beer bottles, crack cocaine, drug

paraphernalia, and a fake handgun were found in the car.         The

parents were heavily intoxicated and had multiple outstanding

warrants for their arrest.   Vic, almost three years old at the

time, was not in a car seat but was sitting on the lap of an

unrelated adult, who also had outstanding warrants.   That day, the




                                3                           A-1352-16T4
Division instituted a Dodd3 removal and placed Vic with a non-

relative resource family.

      Abuse and Neglect (FN) proceedings were filed against Callie,

Jake's parents, and Jake, who was not charged with any offense but

despite being listed only as a dispositional defendant was afforded

counsel.    The   Division     thereafter       filed      a    guardianship       (FG)

complaint to obtain guardianship of Vic, and when the parties

consented to dismiss the FN litigation on May 8, 2015, Jake's

counsel was relieved.        When the FG litigation commenced, Jake was

unable to participate by telephone because the Detroit detention

center in which he was housed had not received prior notice.                         At

a subsequent hearing, Jake appeared by telephone and was assigned

the same counsel who represented him in the FN litigation.

      Thereafter, Jake filed pro se motions to dismiss the complaint

and to replace his counsel.             However, Jake reconsidered and

continued with counsel's representation.              He represented that he

expected to be released from jail after completing a boot-camp-

type program.     But he later misrepresented that he was unable to

complete the program due to an asthma problem, when in reality he

was   removed   from   the   program,       after   less       than   a   month,    for



3
   A "Dodd removal" refers to the emergency removal of a child
from a home without a court order, as authorized by 
N.J.S.A. 9:6-
8.29 of the Dodd Act, 
N.J.S.A. 9:6-8.21 to -8.82.

                                        4                                    A-1352-16T4
"refusing to follow the rules and regulations of the program[,]

. . . mocking a staff person[,] . . . insolent behavior[,] . . .

[and]   continually     attempt[ing]    to   manipulate   the     program."

Attempts to schedule trial were delayed when several adjournments

were granted based upon Jake's representations that he would be

paroled on certain dates – which he was not.

     At a January 15, 2016 hearing, Jake appeared by phone, with

his counsel appearing in court, and complained that he was unable

to speak to counsel due to either the Division's failures or

counsel's office's refusal to accept collect calls. These problems

were resolved through the collective efforts of the parties and

the court.   When Jake stated that he would be paroled on July 13,

2016, the court set the trial for August 3 and 4.               However, a

subsequent March 14 notice from the Michigan parole board provided

that he was denied parole on March 8 because of the nature and

extent of his criminal history, and he would not be considered for

parole until July 13, 2017.

     At an April 15, 2016 hearing, contrary to Jake's earlier

representations,   it    was   reported   that   according   to    Michigan

corrections, Jake had never been eligible for parole until 2017,

and that he had always been free to speak to Vic.                  A later

corrections report provided that Jake was in segregation due to



                                    5                               A-1352-16T4
fighting, again contradicting Jake's representations why he was

unavailable for a scheduled hearing.

     At   a   September   8,     2016    pretrial     hearing,   Jake   appeared

telephonically, and was represented by new assigned counsel.4

During the three-day guardianship trial held later that month,

Jake appeared by telephone, and was afforded – and took advantage

of – the opportunity to confer privately by telephone with counsel

during trial recesses when necessary.                  The Division's expert

testified that Jake's grandmother would not be suitable as an

independent caretaker for Vic due to her borderline intellectual

functionality and her lack of a psychological bond with Vic.                     He

further   opined   that    Vic     had    a   warm,    positive,   and     secure

psychological bond with his resource parents, and that he would

be at a high risk of suffering severe and enduring harm if

separated from them.      Moreover, the expert stated that Vic did not

recognize Jake when they spoke on the phone, and that Jake's

evaluation    revealed    that    he    was   dishonest   regarding      his   co-

habitation with Vic; his marriage history with Callie; Vic's

custody history; and his prison disciplinary record.                The expert

concluded that Jake has an antisocial personality disorder – which


4
    Despite the court's prior denial of Jake's motion for new
counsel, the Public Defender's Office appointed new counsel for
Jake.


                                         6                                A-1352-16T4
he was incapable of changing – and because "his irresponsibility,

. . . would end up causing harm or at least significant risk of

harm to [Vic]" if left to his care, Vic would be at a low risk of

harm if Vic's relationship with Jake was severed.

       The Division's caseworker testified that Callie – who the

Division last had contact with in November 2014 – told the Division

that   she    did   not    want   anything   to    do   with   the   guardianship

proceedings, that Jake's family "is very violent" and "dangerous,"

and that she wanted Vic to live with his foster parents.                         The

caseworker stated that since Vic has been under the care of his

resource parents, who want to adopt him, he has caught up with his

age-appropriate milestones.            She further related that according

to Jake's correctional facility, he was able to call Vic at the

number provided by the Division but chose not to, or had lost his

phone privileges when he was placed in segregation for disciplinary

infractions.

       Only Jake and his brother testified on Jake's behalf because

according to counsel, none of Jake's other relatives that he

proposed could testify returned counsel's telephone calls.                      Jake

disputed this representation, and also claimed that counsel kept

his family members from seeking custody of Vic.                  Judge Richmond

took issue with this; stating that anyone who wanted to apply for

custody      need   only   file    a   complaint    for   custody,     as    Jake's

                                         7                                  A-1352-16T4
grandmother did.   Jake's request for an adjournment claiming there

was a break-down in communication with his counsel, that he wanted

to retain an expert, and that his fiancé needed time to apply for

custody, was rejected by the judge.

      On the last day of trial, the judge denied Jake's motion for

dismissal on the basis that the Division had not made a prima

facie case to terminate his parental rights.       The judge did allow

Jake's brother – who had contacted counsel the night before – to

testify telephonically, wherein he claimed that Jake was a good

father.   The Division had previously denied the brother's request

to take custody of Vic because he misrepresented how many children

he cared for and had unstable housing.            The judge, however,

rejected Jake's request that she delay issuing her decision because

Jake's fiancé – who also contacted counsel the night before –

advised that she had filed a custody complaint for Vic. The motion

was denied; the judge's search of the court's records revealed

that no complaint had been filed.

      In her reserved oral decision, Judge Richmond terminated both

Jake's and Callie's parental rights to Vic based upon the finding

that the Division satisfied the four prongs of the best-interests-

of-the-child standard, 
N.J.S.A. 30:4C-15.1(a). The judge credited

the   Division's   witnesses'   testimony   and   found   that    Jake's

testimony was not believable and his plan to care for Vic was

                                  8                              A-1352-16T4
unrealistic.      Based upon Jake's extensive criminal history, she

found that he was never available to parent Vic, thereby harming

him through abandonment.        Considering that Jake's maximum sentence

runs to 2027, and that he has been denied parole three times, the

judge reasoned it is unlikely – due to his misconduct in prison –

that he will be released at his next parole board hearing in July

2017. And even if paroled, his parole would have to be transferred

to New Jersey, and there would be a slow transition to grant him

custody of Vic since he would have to find steady employment,

along with a stable place to stay.               Consequently, the judge

determined the permanency of a nurturing and caring environment

that Vic needed was available through his resource parents and not

Jake, with whom Vic has never had a relationship.                    Because we

defer     to    the   judge's     factual     findings    and        credibility

determinations, N.J. Div. of Youth & Family Servs. v. M.M., 
189 N.J. 261, 293 (2007), and conclude that Jake's arguments are

without    sufficient   merit    to   warrant   discussion      in    a   written

opinion,   R.    2:11-3(e)(1)(E),     we    affirm   substantially        for   the

reasons set forth by Judge Richmond in her thorough and well-

reasoned decision.

     Turning to Jake's challenge regarding motions, he argues the

judge failed to adjudicate his motions: to dismiss the guardianship

complaint on lack of personal jurisdiction; to enforce the court

                                       9                                  A-1352-16T4
order regarding his telephone contact with Vic; to adjourn the

guardianship trial until he is released on parole; and to dismiss

at the end of the trial.   All of his contentions lack sufficient

merit to warrant extensive discussion.   R. 2:11-3(e)(1)(E).      We

only add that 
N.J.S.A. 2A:34-68(a) establishes temporary emergency

jurisdiction in New Jersey for Vic, who came under the Division's

custody after his caretaker grandparents were arrested in Mount

Laurel.   The record demonstrates multiple instances where the

court made significant efforts to accommodate Jake's Michigan

incarceration.   Any lack of communication with Vic ultimately

boiled down to Jake's lack of effort to contact Vic.   We also see

no abuse of discretion in denying Jake's adjournment requests in

light of the need to find permanency for Vic and the clear

uncertainty of Jake's release date. Furthermore, Jake was afforded

every opportunity to fully participate in the proceedings despite

his incarceration by appearing telephonically and was allowed to

take recesses to privately consult with counsel telephonically

during the trial.

     Finally, we reject Jake's contention that his counsel5 were

"ineffective due to a failure to communicate with [him] or to

properly prepare for . . . the pretrial proceedings or . . .


5
  Two different counsel represented Jake at the pretrial hearings
and at trial.

                               10                          A-1352-16T4
trial."   He also argues that counsel were ineffective because they

failed    to   object   to    the   admissibility      of    evidence;     filed

unsuccessful     motions     to   dismiss    the    defective     guardianship

complaint or for a new trial; failed to investigate factual, legal

or expert defenses related to his gypsy culture; and failed to

proffer family members as kinship legal guardians.

       To sustain a claim of ineffective assistance of counsel, Jake

must   satisfy   the    two-part    test    set    forth    in   Strickland     v.

Washington, 
466 U.S. 668 (1984), that

            (1) counsel's performance must be objectively
            deficient--i.e., it must fall outside the
            broad range of professionally acceptable
            performance; and (2) counsel's deficient
            performance must prejudice the defense--i.e.,
            there must be "a reasonable probability that,
            but for counsel's unprofessional errors, the
            result of the proceeding would have been
            different."

            [N.J. Div. of Youth & Family Servs. v. B.R.,
            
192 N.J. 301, 307 (2007) (citing Strickland,
            
466 U.S. at 694).]

"[A]ppellate counsel must provide a detailed exposition of how the

trial lawyer fell short and a statement regarding why the result

would have been different had the lawyer's performance not been

deficient.     That will include the requirement of an evidentiary

proffer in appropriate cases."         Id. at 311.         We may resolve the

question of ineffective assistance of counsel on the appeal record

alone, unless a genuine issue of fact is present, in which case a

                                     11                                  A-1352-16T4
remand for an expedited hearing before the trial court is necessary

to determine the factual question.        Ibid.

     Our review of the record does not indicate a need for an

evidentiary hearing nor support Jake's contentions.               As for the

FN proceeding, Jake contends effective assistance of counsel was

denied throughout the "ten month" FN proceeding since he was mostly

unrepresented by counsel and was not served notice.               He further

contends the FN matter "achieved no benefit for [him], such as

parenting time . . . despite an absence of abuse, neglect or

unfitness, or . . . evidence of a diagnosed need." However, Jake's

contentions are misguided, as even he acknowledges that he "was

not a target defendant," and the proceeding played no part in

Judge Richmond's assessment of the harm she found that Jake

inflicted upon Vic.        R. 2:11-3(e)(1)(E).

     As for the FG proceeding, we note that Jake was assigned a

new counsel when he felt his initial counsel was not adequately

representing his interest.       We are convinced that his new counsel

presented as strong a case as possible to challenge the Division's

efforts,   and    argued    vigorously   at   trial.     Jake's   claims     of

ineffective      assistance    essentially    question    counsel's     trial

strategy not to present evidence related to his gypsy culture,

however he fails to establish how this alleged deficiency changed

the outcome of the case.

                                    12                                A-1352-16T4
Affirmed.




            13   A-1352-16T4