DIVISION OFCHILD PROTECTION AND PERMANENCY v. A.W.

Annotate this Case

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NOT FOR PUBLICATION WITHOUT THE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-4572-15T3

NEW JERSEY DIVISION OF CHILD
PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

A.W.,

Defendant-Appellant,

and

T.M.F.,

Defendant.
__________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF A.M.A.F.W.

Minor.1
___________________________________

Submitted September 27, 2017 – Decided February 14, 2018

Before Judges Fuentes, Manahan and Suter.

1
As required by Rule 1:38-3(d)(12), we use initials to identify
the parties to protect the confidentiality of records related to
proceedings initiated by the Division of Child Protection and
Permanency held pursuant to Rule 5:12.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-0164-15.

Joseph E. Krakora, Public Defender, attorney
for appellant (Adrienne Kalosieh, Designated
Counsel, on the brief).

Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Merav
Lichtenstein, Deputy Attorney General, on the
brief).

Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor (Melissa R.
Vance, Assistant Deputy Public Defender, on
the brief).

PER CURIAM

The Family Part entered a Judgment of Guardianship against

defendant A.W., terminating his parental rights to his minor

daughter2 A.M.A.F.W. In this appeal, defendant argues the Division

of Child Protection and Permanency (the Division) failed to satisfy

prongs two, three, and four of
N.J.S.A. 30:4C-15.1(a) by clear and

convincing evidence. Defendant also argues the Division violated

his due process rights by denying his requests for visitation with

A.M.A.F.W. throughout the guardianship litigation. We reject

these arguments and affirm.

2
The Family Part also terminated the parental rights of
A.M.A.F.W.'s biological mother, T.M.F., a/k/a T.M.B.F. She did
not file an appeal.

2 A-4572-15T3
I

A.M.A.F.W. was born in 2008. She has a significant history

of emotional and behavioral problems, including "impulsive

behavior, aggressive behavior, defiance, suicidal ideation,

problematic sexual behavior, and poor interpersonal boundaries."

She was diagnosed in 2014–2015 with Attention Deficit

Hyperactivity Disorder (ADHD), Fetal Alcohol Syndrome, and

learning disabilities associated with reading and mathematics.

The record also shows that she may have been sexually abused.

Defendant has a long history of heroin dependence dating back

to the early 1990s. He was born and raised in Newark, where he

has resided with his mother "off and on" since 1977. Defendant

completed twelfth grade in the Livingston public school system.

His most recent job was in 2010 as a "machine operator." His

substance abuse problem has also produced drug-related criminal

activity for which he has served short periods of incarceration.

He has been arrested for "wandering," "loitering," "breaking and

entering," drug possession, failure to pay child support, and

violation of the terms of a probationary sentence. A psychological

evaluation report dated October 31, 2013, shows defendant has been

charged with aggravated arson, theft, disturbing the peace, and

resisting arrest. The report does not reveal the disposition of

3 A-4572-15T3
these charges. As of February 24, 2016, defendant did not receive

any form of public assistance.

The Division's involvement with this family began

approximately two years before A.M.A.F.W. was born. The referrals

involved allegations of physical abuse of A.M.A.F.W.'s older

siblings by their biological mother. Throughout 2008, the Division

substantiated allegations of neglect, abandonment and "substantial

risk of physical injury[.]" Shortly after A.M.A.F.W. was born,

the Division received a referral from St. Barnabas Medical Center

that A.M.A.F.W.'s biological mother: (1) was unable to provide a

name that corresponded with a valid social security number; and

(2) could not confirm that she received prenatal care during her

pregnancy.

When the Division caseworker interviewed A.M.A.F.W.'s mother,

T.M.F., she stated that her apartment was "bordered up[.]" She

planned to care for her newborn infant at her sister's home.

However, the Division was unable to confirm this alleged living

arrangement. When asked about the child's biological father,

T.M.F. claimed defendant was incarcerated at the time. The

Division substantiated T.M.F. for neglect and removed A.M.A.F.W.

from her care. The child was reunified with her parents on

September 25, 2009, approximately nine months later. From November

17, 2010 to October 5, 2012, the Division received four separate

4 A-4572-15T3
referrals regarding T.M.F.'s "explosive temper" and suspected

alcohol abuse. Defendant denied that T.M.F. had a "drinking

problem." On December 12, 2011, defendant also denied being

A.M.A.F.W.'s father and refused to provide the Division with his

date of birth or social security number.

The first incident that triggered judicial involvement

occurred on October 24, 2013. On that date, the Division received

a referral that a passerby had contacted the police after

discovering then four-year-old A.M.A.F.W. "wandering" by herself

at the High Bridge Train Station. Both T.M.F. and defendant

refused to accept any responsibility for the incident. Each parent

gave conflicting accounts of the event. When she was interviewed

by High Bridge Police Officers at police headquarters, T.M.F.

claimed that she had placed A.M.A.F.W. on a train with defendant

before she returned home.

Defendant told the Division caseworker that he had an argument

with T.M.F. and left her house when she "kicked him out." He

claimed he was alone when he took a train to New York City to

return to the Palladia-Esperanza Transitional Shelter, where he

allegedly resided at the time. Defendant told the caseworker that

as the train pulled away, he saw T.M.F. and A.M.A.F.W. on the

station platform. He then saw T.M.F. "turn around to walk away"

and A.M.A.F.W. "running after her and crying." Defendant told the

5 A-4572-15T3
caseworker that T.M.F. could not have expected him to take

A.M.A.F.W. with him to New York City because she knew that children

are not allowed in the transitional shelter.

Division records show that later that same day a caseworker

telephoned the Palladia-Esperanza Transitional Shelter to verify

defendant's statement. The woman who answered the phone refused

to identify herself. However, she told the caseworker that

defendant "was no longer staying there" and "it [had] been a while

since [A.W.] [was] there." When confronted with this information,

defendant conceded that he was residing with his mother in the

Township of Irvington.

A.M.A.F.W., who was five years old at the time, told the

caseworker that her parents had been arguing over who should take

care of her that day. She boarded the train with her father, but

she stepped off before the train pulled away from the station.

Thus, according to A.M.A.F.W., her mother was the one who abandoned

her that day. After completing this preliminary investigation,

the Division executed an emergency DODD removal of A.M.A.F.W. and

placed her in a Division-approved resource home. See
N.J.S.A.

9:6-8.29;
N.J.S.A. 9:6-8.30. The Division ultimately

substantiated both T.M.F. and A.W. for neglect, finding both

parents "deprived [A.M.A.F.W.] [of] necessary care[,]" thereby

creating a "substantial risk of serious harm[.]"

6 A-4572-15T3
B

On October 28, 2013, the Division filed an order to show

cause and verified complaint to obtain temporary custody, care,

and supervision of A.M.A.F.W. pursuant to
N.J.S.A. 9:6-8.21 and

N.J.S.A. 30:4C-12. Although defendant appeared at the hearing,

he did not offer himself as a placement for the child due to his

substance abuse problem. Defendant suggested his mother, M.W.,

and his niece, K.W., as potential relative-placements. M.W. ruled

herself out; she informed the Division that she was too old to

properly care for her granddaughter. On October 13, 2015, the

Division sent M.W. a formal rule-out letter. With respect to his

niece, defendant informed the Division that K.W. "suffers from

migraines[.]" K.W. later advised the Division that she was unable

to care for A.M.A.F.W. because she "works, goes to school, and has

her own child." The appellate record does not contain a copy of

a Division rule-out letter for K.W.3

On October 28, 2013, the Family Part entered an order placing

A.M.A.F.W. in the custody, care, and supervision of the Division.

The court's order required defendant to submit to psychological

3
Although T.M.F. provided the Division with two potential relative
placements, these individuals were not deemed appropriate. We
have opted not to provide more details on this subject because
T.M.F. did not appeal.

7 A-4572-15T3
and substance abuse evaluations by healthcare professionals

selected by the Division. The court granted defendant "weekly

supervised visitation contingent upon 24-hour advance

confirmation." The court order also included the following

admonition:

The failure of defendants to comply with any
provision of this order or their continuing
failure to appear may result in a default
being entered by the court and may result in
the commencement of a termination of parental
rights proceeding. A termination of parental
rights would free the child[] for adoption.

The Division advised defendant that, if necessary, it could arrange

to assist him with transportation to the evaluation sites.

Defendant tested positive for opiates on October 28, 2013,

October 31, 2013 and December 20, 2013. Defendant also admitted

to taking oxycodone without a prescription on multiple occasions.

At his substance abuse evaluation with Preferred Children's

Services (PCS), defendant denied any opiate dependency issues.

Following this evaluation, the PCS counselor recommended that

defendant attend an outpatient treatment program located in

Irvington called "The Bridge." PCS ultimately terminated

defendant from its outpatient program due to minimal attendance

and failure to comply with treatment recommendations.

The Division also referred defendant to Dr. Sally Morcos of

Evermore Wellness, LLC, for a separate psychological evaluation.

8 A-4572-15T3
Although defendant attended his first scheduled meeting with Dr.

Morcos, he failed to attend three additional appointments.

Consequently, the Division was unable to determine what kind of

psychological services defendant required prior to his

reunification with A.M.A.F.W.

The Division provided defendant with a train pass to assist

him in attending his court-ordered weekly visitation sessions with

A.M.A.F.W. Despite this accommodation, defendant's record of

attending these visits with his daughter was, at best, sporadic.

His first visit was on October 31, 2013. The Division contact

sheet documenting the visit described his interactions with the

child as pleasant. The second visit took place approximately two

weeks later, on November 14, 2013. Once again, the contact sheet

described the interaction between father and daughter as

"friendly[,]" "appropriate[]," and reflective of a "mutual bonding

relationship [between] a loving child and [her] [father]." The

record shows the visit concluded with the two saying "I love you"

and "hugging and kissing . . . in a loving [fashion]."

However, although the court order entitled defendant to

"weekly supervised visitation," the next time defendant saw his

young daughter was on December 20, 2013, thirty-six days after his

last visit. In fact, defendant saw the child only three times

during a three-month period. An entry in a Division contact sheet

9 A-4572-15T3
dated December 5, 2013 provides an explanation for this outcome:

"[Defendant] continues to be inconsistent with his attendance at

visits[,] often calling at the last minute to state he has to work

or cannot make . . . the visit for transportation reasons[,]

despite having [a] train pass."

Defendant's participation and attendance in a Family Team

Meeting (FTM), a Division-sponsored program, provides additional

information on defendant's circumstances. The meeting took place

at defendant's mother's home. A "Family Summary" includes the

following description of defendant's situation at that time:

[A.W.] is the [49-year-old] father of
[A.M.A.F.W.]. [A.W.] denied having any other
children. [A.W.] is unemployed at this time
and is not receiving any benefits. [A.W.]
reported residing between his mother's home
in Irvington, [New Jersey] and a Transitional
Home in New York. [A.W.] does not have a
stable home in order to present a place for
[A.M.A.F.W.] to be returned to his care.
There are also concerns regarding [A.W.]'s
admission that he has taken medication that
is not prescribed to him. [A.W.] is willing
to work with the Division and has expressed
an interest in complying with the court[']s
order.

Although he identified his love for his daughter, his

willingness to make sacrifices for her well-being, and strong

family support as "strengths" favoring reunification, defendant

acknowledged that reunification could occur only if he could find

stable housing, secure employment with benefits, and remain

10 A-4572-15T3
"substance abuse free[.]" The Division agreed to continue to

provide defendant with a safe location for him to have weekly

supervised visitation with A.M.A.F.W., including transportation

if necessary. Defendant was required to notify Division workers

"immediately" of the need to reschedule any visits.

On January 21, 2014, the Division revoked defendant's train

pass. Caseworker Stephanie Restrepo informed defendant that the

record showed he was not using this service to visit his daughter.

Restrepo also asked defendant if he intended to seek treatment for

his substance abuse problem. Although defendant indicated he

intended to seek treatment, he declined the Division's offer to

arrange referrals to resources in his area. On February 7, 2014,

Restrepo contacted defendant to determine whether he planned to

attend the visitation with his daughter scheduled for that day.

When defendant responded that he did not have funds to pay for

transportation, Restrepo told defendant that the Division would

reimburse him for his travel expenses at the rate of thirty-one

cents per mile. Defendant stated he was unable to attend.

Defendant did not have any contacts with A.M.A.F.W. in January or

February 2014.

Defendant's next visit with A.M.A.F.W. took place on March

6, 2014, at the Division's local Hunterdon County office. Division

records reflect that the interaction between father and daughter

11 A-4572-15T3
was positive. When defendant arrived, A.M.A.F.W. "jumped into his

arms and gave him a hug." Defendant "spoke appropriately" with

his daughter throughout; he kissed the child goodbye at the end

of the visit and told her he would see her soon. Despite this

innocuous facade, Division staff noted defendant seemed to be

"under the influence of an illegal substance[.]" He "appeared to

be falling asleep during the visit and his speech was not legible."

At the Division's request, defendant agreed to provide a urine

sample at the end of visit. Defendant tested positive for cocaine

and opiates.

On March 14, 2014, defendant cancelled his scheduled visit

with A.M.A.F.W. because he was "feeling weak and light headed."

Restrepo told defendant that the Division had secured a March

train pass for him and emphasized the importance of attending all

weekly visits. Defendant apologized and asked that the visit be

rescheduled. He told Restrepo that he needed to find an inpatient

treatment program for his substance abuse problem. He alleged he

had "called a few places[,]" but did not provide Division staff

with the names of any specific facility or program. Despite

numerous attempts by Division staff to communicate with defendant,

both on the telephone and in person, defendant did not respond

until January 2015. He did not see his daughter again until

12 A-4572-15T
3 October 2015, more than 500 days from his last visit on March 14,

2014.

A.M.A.F.W.'s emotional stability worsened during this period

of time. Due to her behavioral issues, she was removed from her

resource home on January 17, 2014, and placed in a second home.

Her psychotherapist at the time opined she was not "benefitting

from therapy" due to her "cognitive and developmental delays."

Division records note A.M.A.F.W. displayed tendencies to act

aggressively with other children, and she continued to have

"boundary and personal space issues." She was "behind academically

as compared to her peers[,]" and could not identify colors,

letters, and numbers.

On January 29, 2014, the Division arranged a psychological

evaluation to "assess [A.M.A.F.W.]'s . . . functioning, . . . and

to make treatment recommendations that would meet her needs."

Psychologist Dr. Margaret DeLong noted A.M.A.F.W. "demonstrate[d]

delays that suggest emotional and social deprivation as well as

[a] lack of academic and educational stimulation during her early

years." Dr. DeLong found A.M.A.F.W. was "behind with [her] social

skills[;]" she "cannot sit still or focus for any length of

time[;]" and she has a "hard time relating with other children[.]"

Dr. DeLong opined that A.M.A.F.W. would benefit from a Child Study

13 A-4572-15T3
Team evaluation, as well as placement in a specialized "preschool

handicapped" program or a "therapeutic preschool." Dr. DeLong

also recommended that A.M.A.F.W. participate in individual play

therapy, recreational activities with her peers, and supervised

visitation with her mother.

Consistent with Dr. DeLong's recommendations, the Division

referred A.M.A.F.W. to counseling, as well as several evaluations

to assess her speech and overall developmental delays. Based on

a speech evaluation conducted at TC Kids-Therapy Center, Dr. Jacek

Sakowski diagnosed A.M.A.F.W. with "moderate-severe receptive

language and moderate expressive language delay." Dr. Sakowski

recommended that she receive bi-weekly speech therapy with an

"emphasis on receptive language and vocabulary syntax

development."

In April 2014, Dr. Tosan Livingstone, a pediatrician

associated with Morristown Memorial Hospital, conducted a

pediatric neurodevelopmental evaluation of A.M.A.F.W.'s behavior.

She concluded that A.M.A.F.W. was "in the clinically significant

range for hyperactivity, aggression, depression, atypicality,

attention problems[,] and functional communication." Dr.

Livingstone diagnosed A.M.A.F.W. with ADHD, Fetal Alcohol Effects,

and "Learning Difficulty." Finally, the Clinton Public School

District determined A.M.A.F.W.'s disabilities would affect her

14 A-4572-15T3
educational performance, thus requiring special education and

related services.

On April 21, 2014, the Family Part conducted a fact-finding

hearing. The court found, by a preponderance of the evidence,

that both defendant and her biological mother T.M.F. had "grossly

neglected" A.M.A.F.W. by leaving her unattended at the High Bridge

train station. See
N.J.S.A. 9:6-8.21. The court found A.M.A.F.W.

was placed in a "position of imminent danger[,]" because she was

only four years old at the time and incapable of protecting

herself. Although both parents were represented by counsel,

neither parent attended the hearing.

During the months following the fact-finding hearing,

A.M.A.F.W.'s resource mother reported that the child's behavior

had significantly deteriorated and become increasingly

"intolerable." She displayed inappropriate sexualized behaviors

at her school and was physically aggressive against other children.

She hit other children in the home, destroyed toys, refused to

follow directions, and constantly demanded food. The resource

mother initially stated she was unwilling to adopt, but would

continue to care for A.M.A.F.W. until the commencement of the

following school year. Unfortunately, the resource mother later

rescinded her offer and requested that A.M.A.F.W. be removed as

15 A-4572-15T3
soon as possible. The Division removed A.M.A.F.W. from this

resource home on August 1, 2014. She was thereafter placed in a

temporary resource home, pending the outcome of the Division's

efforts to find a suitable pre-adoptive home.

Based on defendant's and T.M.F.'s history of noncompliance,

the Division decided to file a guardianship action and seek the

termination of their parental rights. The ultimate goal was to

find and select a home suitable for adoption. The Division placed

A.M.A.F.W. in a pre-adoptive home approximately one month later.

The child thereafter was enrolled in kindergarten where she

received special education services pursuant to her classification

by the local public school district. A.M.A.F.W.'s new resource

parent reported to the Division that it was "extremely difficult

to manage her behaviors[.]" She had "frequent meltdowns[,]"

including incidents in which she would throw herself on the floor

and scream. According to the resource parent, A.M.A.F.W.

constantly spoke about her biological parents, but would refer to

them by their first names, as opposed to commonly used appellations

such as "mom" or "dad." The Division referred A.M.A.F.W. to the

Rutgers's Foster Care Counseling Project for individual therapy.

On October 20, 2014, the Family Part conducted a permanency

hearing; defendant did not appear. The trial judge found the

Division's plan of termination followed by adoption was both

16 A-4572-15T3
"appropriate and acceptable." The court further found the Division

had provided reasonable efforts toward reunification, including

transportation to supervised visits and referrals to substance

abuse evaluations and treatment programs. The court also

transferred venue to Essex County. Division caseworker Stephanie

Restrepo notified both parents via letter of the change in venue.

A.M.A.F.W.'s emotional stability took a dramatic turn for the

worse in October 2014. Her resource parents described the child

as having "full-blown meltdowns[]" in which she would violently

strike the pets in her pre-adoptive home and incessantly repeat

that she was "scared[.]" She would also repeatedly lie to the

school nurse about being sick as an excuse to be sent home. Of

particular concern were the reports of the child's sexualized

behavior. As described by the resource parents, A.M.A.F.W. had a

habit of "touching people" in inappropriate areas. For this

reason, A.M.A.F.W.'s therapist expressed concerns that she may

have been sexually abused. The resource parents told the Division

they were hesitant to commit to long-term care of A.M.A.F.W. if

her behaviors did not improve.

On November 6, 2014, the Division received a referral

regarding troubling disclosures A.M.A.F.W. made to her resource

parents concerning defendant. Specifically, A.M.A.F.W. stated

that her biological father, defendant A.W., had "kissed her on her

17 A-4572-15T3
vagina." She also said defendant "kissed her on the ear, licked

her ear[,] and bit her lip." The Division, the Hunterdon County

Prosecutor's Office, and the Clinton Police Department

investigated these allegations. As these three agencies proceeded

to investigate the child's allegations against defendant,

A.M.A.F.W. also accused her biological mother, T.M.F. of

physically abusing her. According to A.M.A.F.W., T.M.F. "used to

pin her against the wall and hit her head against the wall" in

addition to "kick[ing]" her and "elbow[ing]" her.

Lieutenant Kristen Larsen of the Hunterdon County

Prosecutor's Office questioned T.M.F. about her daughter's

allegations of physical abuse. T.M.F. strongly denied that she

ever physically abused her daughter. Defendant denied he was

ever sexually inappropriate with his daughter. He offered to take

a lie detector test as a means of refuting these accusations. When

pressed on the subject of sexual conduct, defendant admitted that

A.M.A.F.W. had partially witnessed he and T.M.F. engaging in sexual

activity. Ultimately, both the Hunterdon County Prosecutor's

Office and the Clinton Police Department concluded there was

insufficient evidence to support filing criminal charges against

either parent. The Division also concluded that the allegations

of sexual abuse against defendant were unfounded and the

18 A-4572-15T3
allegations of physical abuse against T.M.F. were "[n]ot

[e]stablished."

On November 13, 2014, the Division received a referral from

A.M.A.F.W.'s resource home that A.M.A.F.W. had been admitted to

the psychiatric unit of Robert Wood Johnson University Hospital

after experiencing a psychotic episode. The resource parents

stated A.M.A.F.W. had an "absolute crisis" moment in which she

displayed extreme behaviors, such as running around the house,

screaming, and attempting to kick her caretaker down a flight of

stairs. The adults who were present stated that A.M.A.F.W. acted

as if she was unaware of her surroundings. While en route to the

hospital, they saw and heard A.M.A.F.W. having a conversation with

herself. When asked who she was speaking to, she responded that

she was speaking to a ghost who visits her every night when no one

else is around. A.M.A.F.W. was transferred to Summit Oaks Hospital

in Summit, where she remained hospitalized for approximately ten

days.

During her stay at Summit Oaks Hospital, A.M.A.F.W. told her

treating psychiatrist that voices in her head told her to kick her

resource parent down the stairs. These same voices were also

telling her to commit suicide. With respect to A.M.A.F.W.'s

auditory hallucinations, the psychiatrist who examined her

tentatively diagnosed her as suffering from "[b]ipolar [d]isorder

19 A-4572-15T3
with psychotic features[.]" However, he hoped to rule out this

diagnosis based on her young age. Ultimately, the psychiatrist

was unable to complete an evaluation because A.M.A.F.W. was

"restless" and unable to sit still.

Summit Oaks Hospital discharged A.M.A.F.W. on November 25,

2014. Following this incident, the third couple originally willing

to be A.M.A.F.W.'s resource parents apprised the Division that

they were no longer able to care for her and requested that she

be removed from their home. The Division placed A.M.A.F.W. in a

fourth Division-approved resource home. However, this placement

was temporary because the Division had concluded that A.M.A.F.W.

required a higher level of care. The goal then was to place her

in a therapeutic treatment home. As part of its discharge plan,

the hospital prescribed A.M.A.F.W. 0.5 mg of Tenex4 to be

administered twice daily. Following her new placement, the

Division registered A.M.A.F.W. as a student at the Marion P. Thomas

Charter School in Newark. However, she continued to display

physically aggressive behavior; she was defiant, uncooperative,

and generally disruptive. She also engaged in "poor social

4
Tenex is a cognition-enhancing medication commonly used to treat
high blood pressure and ADHD. Univ. of Ill.-Chi., Drug Info.
Grp., Can Tenex Be Used to Treat ADHD?, HEALTHLINE,
http://www.healthline.com/health/adhd/tenex-adhd#introduction1
(last visited Aug. 23, 2017).

20 A-4572-15T3
interactions" with children her age because she was constantly

moving.

On December 3, 2014, the Division filed a complaint for

guardianship in the Essex County Chancery Division, Family Part,

seeking the termination of defendant's and T.M.F.'s parental

rights to A.M.A.F.W. pursuant to
N.J.S.A. 30:4C-15. The Division

alleged that, notwithstanding its reasonable efforts to achieve

reunification, both parents "substantially, continuously[,] and

repeatedly" failed to maintain contact with their daughter or

reasonably plan for her future. Under these circumstances,

permanent adoption would be in A.M.A.F.W.'s best interests. The

Division made the following specific allegations against

defendant:

[A.W.] has failed numerous times to avail
himself to the services provided by the
Division. He has failed to make a permanent
plan for the child, has abandoned the child
to the care of others, and has substantially
failed to perform the regular and expected
functions of care and support for the child.
He has partially complied with past [c]ourt
orders. To return the child to the care of
[A.W.] would expose the child to an
unacceptable level of harm or risk of harm.

After he was served with the guardianship complaint,

defendant contacted Division caseworker Michelle Montgomery to

discuss a potential case plan. At a court hearing conducted on

January 21, 2015, the Deputy Attorney General (DAG) who represented

21 A-4572-15T3
the Division informed the court that the Division planned to resume

scheduling weekly visits between defendant and his daughter. The

DAG also indicated that defendant had agreed to submit to a drug

screen. Unfortunately, defendant did not attend the case plan

meeting he scheduled with caseworker Montgomery. Defendant also

did not attend a meeting at A.M.A.F.W.'s school, despite receiving

notice of the meeting at the January 21, 2015 hearing. Defendant

also failed to report to a scheduled drug screening test at

Catholic Charities. He was eventually discharged from this program

for noncompliance after missing several appointments.

The record is uncontroverted in one key respect. Defendant

consistently failed to attend multiple prescheduled visits with

his daughter, and failed to appear at four court conferences that

took place between March and July 2015. On May 5, 2015, the DAG

informed the court that the Division had made "multiple efforts

to try and reach [A.W.]." The DAG represented to the court that

defendant had failed to respond to numerous attempts to contact

him, both by phone and by letters sent to his last known address.

As reflected in the multipurpose order entered on May 5, 2015, the

court found that defendant "continues to be non-compliant with the

Division despite [the Division's] efforts . . . to engage him."

On May 8, 2015, the Family Part directed both defendant and

T.M.F. to report to Dr. Gianni Pirelli for psychological and

22 A-4572-15T3
bonding evaluations. The Division designated Dr. Pirelli as its

expert witness in the guardianship trial. On June 10, 2015, the

Family Part entered an order finding that both defendant and T.M.F.

failed to appear for these pre-scheduled evaluations. The court

ordered that if the parties failed to attend their rescheduled

evaluations, "they [would] be precluded from presenting their own

psychological expert[s] at trial." On July 15, 2015, following

the parties' repeated failures to attend their court-ordered

evaluations with Dr. Pirelli, the Family Part entered an order

barring defendant and T.M.F. from presenting their own experts at

trial.

While the guardianship case was pending, the Division

referred A.M.A.F.W. to New Jersey Mentor for a psychiatric

evaluation. The evaluator reaffirmed an earlier diagnosis of ADHD

and included a new diagnoses of post-traumatic stress disorder and

oppositional defiant disorder. The evaluator recommended

psychotropic medication, as well as "school support," "behavioral

modifications," "anger management," "individual therapy," and

"sexually specific traumatic focus therapy." With respect to her

sexualized behavior, physicians who examined A.M.A.F.W. opined

23 A-4572-15T3
that she may be experiencing "precocious puberty."5 In particular,

her psychiatrist stated that A.M.A.F.W. "may be very confused

because she is functioning on some levels at a [three-year-old]

level, and [at an eleven-year-old level] in other areas[.]" The

Division placed A.M.A.F.W. in a New Jersey Mentor treatment home

shortly thereafter.

This placement proved to be short lived. On May 27, 2015,

the Division removed A.M.A.F.W. from the New Jersey Mentor

treatment home and placed her in a residential facility operated

by the Youth Consultation Service Davis House (YCS Davis House).

Division records describe the YCS Davis House as a shelter where

the child could receive in-house therapy and medication

monitoring. A.M.A.F.W. also attended weekly therapy at Wynona's

House Child Advocacy Center (Wynona's House). The therapy at

Wynona's House focused exclusively on A.M.A.F.W.'s sexually

inappropriate behavior and explored the veracity of the child's

allegations of sexual abuse against her father. The Division's

plan was for A.M.A.F.W. to remain at YCS Davis House for six to

5
Precocious puberty is "when a child's body begins changing into
that of an adult . . . too soon." Mayo Clinic Staff, Precocious
Puberty, MAYO CLINIC (Nov. 11, 2016),
http://www.mayoclinic.org/diseases-conditions/precocious-
puberty/home/ovc-20265997.

24 A-4572-15T3
nine months. At the end of this treatment phase, she would then

be "stepped down" to another treatment home.

A.M.A.F.W. met on a regular basis with licensed social worker

Amy Johnson, a staff social worker at YCS Davis House. In August

2015, the Family Part received a letter-report from Johnson

describing A.M.A.F.W.'s treatment and the progress the child was

making in dealing with issues related to her mother. During this

same time period, the Division continued its attempts to contact

defendant without success.

On September 14, 2015, defendant contacted Division

caseworker Michelle Montgomery. Although he acknowledged having

received timely notice of his missed evaluation appointments with

Dr. Pirelli, he claimed he was still not ready to be evaluated or

attend a CADC assessment. Montgomery advised defendant of the

case management conference before the Family Part scheduled on

September 22, 2015. Defendant confirmed he would attend and

provided Montgomery with an updated telephone number through which

the Division could contact him.

The court permitted defendant to appear by phone at the

September 22, 2015 case management conference. Relying in large

part on the progress report from A.M.A.F.W.'s therapist, the court

continued the suspension of T.M.F.'s visitation rights.

Defendant's counsel requested that he be allowed to visit his

25 A-4572-15T3
daughter. Both the Law Guardian and the DAG on behalf of the

Division requested an opportunity to consult with A.M.A.F.W.'s

therapist on the issue of defendant's visitation. The court

granted this request over defendant's counsel's objection.

Due to a postponement of the guardianship trial, the court

modified its earlier order and gave defendant and T.M.F. an

additional opportunity to attend their psychological and bonding

evaluations with Dr. Gianni Pirelli. The court also ordered the

Division and defendant to meet on September 28, 2015, for the

purpose of establishing a case plan. Defendant failed to attend

the case plan meeting. The Division rescheduled the meeting for

October 1, 2015. Defendant again failed to attend. The following

week, defendant met with a caseworker at the Division's Newark

South Adoption Office to sign a family agreement. At this

encounter, defendant requested, for the first time, that the

Division investigate and determine the suitability of two relative

placements for A.M.A.F.W.: (1) his sister, L.W.; and (2) his niece,

K.W. Caseworker Montgomery testified at the guardianship trial

that L.W. informed the Division that she did not wish to be

considered as a placement for A.M.A.F.W. K.W. also advised the

Division that she would be unable to serve as a placement for

A.M.A.F.W. because she "works, goes to school, and has her own

child."

26 A-4572-15T3
On October 19, 2015, the Family Part conducted a permanency

and pre-trial hearing. Though notified, defendant did not attend

nor make any arrangement to appear telephonically. At this

hearing, the court found, by a preponderance of the evidence, that

the Division's plan of adoption was appropriate and acceptable.

The court also found the Division made reasonable efforts toward

reunification, and determined it would be unsafe to return

A.M.A.F.W. to the custody and care of her parents. With respect

to defendant's ongoing request for weekly visitation, the court

deferred to the recommendations of A.M.A.F.W.'s therapist, who

argued strongly against any contact with the parents. 6 The

Division sent defendant a letter documenting his failure to appear

at the hearing and informing him of what had occurred therein.

On October 28, 2015, defendant finally attended his

psychological and bonding evaluation with Dr. Gianni Pirelli. He

6
In a progress report sent to the court that same day, the
therapist stated, in relevant part:

I do not recommend that [A.M.A.F.W.] resume
visits with her mother or her father. Since
the plan is not reunification, I feel that it
would hinder [A.M.A.F.W.'s] progress in
working toward her behavior goals in
treatment. Visits would further serve to
confuse [A.M.A.F.W.] as to whether or not she
would be reunited with her parents and [would]
also subsequently disrupt her progress and
treatment at [YCS] Davis House.

27 A-4572-15T3
had not seen his daughter in more than nineteen months. Caseworker

Montgomery transported the child and defendant to the evaluation.

In her report, Montgomery noted that despite the lengthy period

of time since the child had had any contact with defendant,

A.M.A.F.W. was "very talkative" and seemed "very happy to see

him." The Division presented Dr. Pirelli's observations,

findings, and conclusions as part of his testimony at the

guardianship trial.

After his meeting with Dr. Pirelli, defendant did not respond

to Montgomery's repeated attempts to contact him. Defendant also

failed to appear at the Family Part's pre-trial hearings on

November 16, 2015 and December 3, 2015. It was later determined

that defendant had entered a detox program at the ACI Chemical

Dependency Treatment Center (ACI) in New York City. After detox,

defendant enrolled at the Salvation Army's Adult Rehabilitation

Center for an extended inpatient treatment program for his heroin

addiction. Defendant relied on the Salvation Army's anonymity

rules to explain his failure to inform the Division of his

whereabouts.7

7
An order dated December 3, 2015, reflects that defendant
scheduled his own psychological and bonding evaluation. This
order also states: "The Division was advised by [A.W.]'s mother
that [A.W.] is in rehab in New York, but no other information was
provided regarding his exact whereabouts."

28 A-4572-15T3
At a pre-trial hearing held on November 16, 2015, the court:

(1) denied without prejudice defendant's request to restore his

visitation rights to A.M.A.F.W; and (2) granted the Law Guardian's

application to require defendant to attend a psychological and

bonding evaluation with Dr. Sean Hiscox. Defendant did not attend

his scheduled evaluation with Dr. Hiscox. On December 21, 2015,

caseworker Montgomery contacted defendant's mother. She advised

the Division that defendant had mailed her a Christmas card with

a return address in New York City. Montgomery confirmed that

defendant was residing at the Salvation Army's Adult

Rehabilitation Center at the time. In a letter addressed

accordingly, Montgomery notified defendant that the guardianship

trial was scheduled to start in January 2016.

III

Judge David B. Katz presided over the guardianship trial that

began on January 8, 2016 and concluded on May 27, 2016. The

Division called as fact witnesses caseworkers Restrepo and

Montgomery, and adoption specialist Cheri Braithwaite. The

Division called Dr. Pirelli to testify as an expert witness in

psychology. Judge Katz admitted Dr. Pirelli in this capacity

without objection from either defendant or the Law Guardian.

The Division caseworkers' testimony covered at length the

hardships this child has endured since her birth. The caseworkers

29 A-4572-15T3
also described in detail the services and programs the Division

made available to defendant since this ordeal began, as well as

defendant's repeated failure to keep appointments and take

advantage of these opportunities. We will not reiterate here the

events we described in great detail in Parts I and II of the

opinion. However, we will identify how Dr. Pirelli's testimony

supported Judge Katz's findings that the Division satisfied, by

clear and convincing evidence, prongs two, three, and four of

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

Dr. Pirelli conducted defendant's psychological and bonding

evaluations on October 28, 2015, before defendant entered detox

at ACI or enrolled in inpatient treatment at the Salvation Army's

Adult Rehabilitation Center. In his report, Dr. Pirelli noted

that defendant freely admitted he was addicted to heroin. On the

day Dr. Pirelli performed the psychological evaluation, defendant

acknowledged that he had ingested heroin the previous night. As

reflected in Dr. Pirelli's report, defendant began using heroin

in "1991 or 1992." He also had enrolled in detox and/or

rehabilitation programs on "three or four" occasions, all without

success. His addiction to heroin at the time cost him "$40 or $50

per day."

Defendant denied using other illicit drugs until he was

confronted with the test results showing positive for cocaine. At

30 A-4572-15T3
that point, defendant admitted to consuming alcohol and "dabbling"

in cocaine. Dr. Pirelli also noted that defendant struggled to

pay child support for A.M.A.F.W., but managed to consistently find

the means to pay for his expensive drug habit. In response to

this observation by Dr. Pirelli, defendant stated: "That's a person

[who] has to get help."

According to Dr. Pirelli, defendant and A.M.A.F.W. interacted

pleasantly during the bonding evaluation. The two played board

games and engaged in conversations about A.M.A.F.W.'s toys, her

Halloween costume, and what she was like as a baby. By contrast,

in the section of the report entitled "Integration of Findings,

Conclusions, and Recommendations," Dr. Pirelli opined that

defendant "exhibited significant parenting deficits[.]" Of

particular concern was defendant's drug addiction and his

"inability to acknowledge many of his problematic decisions[.]"

Defendant "attribute[d] much of the blame to [T.M.F.] and the

Division," and minimized or overlooked the negative effect of his

decision to use heroin the night before his psychological

evaluation. Dr. Pirelli found defendant lacked any "appreciation

for [A.M.A.F.W.]'s needs, particularly those pertaining to

stability and permanency." In this regard, Dr. Pirelli expressed

particular concern about defendant's decision to voluntarily

31 A-4572-15T3
distance himself from A.M.A.F.W. and the Division for nearly two

years.

Dr. Pirelli opined that reunifying defendant with A.M.A.F.W.

exposed this special-needs, psychiatrically fragile child to "an

to an abusive and/or neglectful environment." Dr. Pirelli found

that defendant puts his own needs before those of A.M.A.F.W. and

is "certainly not someone who would seek assistance[,]" because

he "does not believe there are any notable problems he must address

other than drug treatment." Based on "numerous risk factors" and

history of non-adherence to the Division's recommendations and

services, Dr. Pirelli concluded that defendant was unfit to parent

A.M.A.F.W. He further opined it was "unlikely" that A.M.A.F.W.

would suffer "notable effects" as a result of the termination of

defendant's parental rights. Thus, Dr. Pirelli opined that

termination of defendant's parental rights followed by a

permanent, adoptive placement would be in A.M.A.F.W.'s best

interest.

The Division concluded its case-in-chief by presenting the

testimony of adoption supervisor Cheri Braithwaite. As

Braithwaite explained, once a child becomes "legally free" for

adoption, the Division has greater access to private adoptive

homes, as well as out-of-state homes listed on the National

Exchange. Braithwaite was confident in the Division's ability to

32 A-4572-15T3
find a suitable adoptive home for a child she described as a "very

friendly, loveable child[]" who has been able to "connect with

families in the past[.]" According to Braithwaite, the Division

has found suitable homes for children with needs greater and more

significant than those of A.M.A.F.W.

The Law Guardian presented the testimony of Dr. Sean Hiscox,

whom the court admitted as an expert in "clinical and forensic

psychology with respect to parent[al] fitness, bonding[,] and

children[.]" Dr. Hiscox conducted psychological and bonding

evaluations with defendant and A.M.A.F.W. on February 12, 2016.

At that point in time, defendant had spent approximately two and

one-half months as a resident in the Salvation Army's Adult

Rehabilitation Center. Echoing the impressions expressed by Dr.

Pirelli, Dr. Hiscox opined that defendant's interactions with

A.M.A.F.W. during the bonding evaluation were "easy and warm,"

with many instances of "positive, mutually gratifying exchanges."

Dr. Hiscox nevertheless expressed "significant concerns"

regarding defendant's ability to provide A.M.A.F.W. with a

"stable, secure, and safe home . . . on a day-to-day basis over

the long run." Dr. Hiscox noted that despite the "controlled

environment" provided by the Salvation Army's program, defendant's

history shows he had only achieved intermittent periods of sobriety

followed by relapses. Despite these misgivings, Dr. Hiscox's

33 A-4572-15T3
opinion differed from Dr. Pirelli's opinion on the question of the

reunification:

[A]t this time[,] it is my opinion that there
are more factors supporting an attempt to
reunify [A.M.A.F.W.] with [A.W.] than
supporting the termination of [A.W.'s]
parental rights. An additional factor . . .
is that [A.M.A.F.W.] does not presently have
an identified adoptive home and she has not
started the process of stepping down in the
intensity of her treatment. As a result, I
recommend that [A.W.] be given additional time
to show his stability and commitment to
[A.M.A.F.W.] based on the positive progress
he appears to be making. Given [A.M.A.F.W.]'s
situation, I see no downside for her if he is
given this opportunity.

[Emphasis added.]

On cross-examination, Dr. Hiscox acknowledged that his

opinion was based only on conversations he had with defendant,

A.M.A.F.W., the Law Guardian, and the child's therapist. In his

report, Dr. Hiscox opined that after his release from the Salvation

Army's inpatient treatment program, defendant could parent

A.M.A.F.W. while residing at his mother's home. He acknowledged,

however, that he was unaware that defendant's mother did not want

A.M.A.F.W. residing in her home at the time he made this

recommendation. Dr. Hiscox also agreed with the DAG that "past

behavior is the best predictor of future behavior[.]" He thus

could not state with certainty that defendant would successfully

complete the Salvation Army's inpatient treatment program and

34 A-4572-15T3
thereafter would not relapse. He testified that without these

necessary prerequisites, defendant would not be fit to parent in

the foreseeable future.

Defendant presented the testimony from Dr. Gerard Figurelli,

whom the court admitted as an expert in clinical psychology and

substance abuse evaluation and treatment. Dr. Figurelli prepared

a report based on a psychological evaluation with defendant and a

bonding evaluation with defendant and A.M.A.F.W. on February 24,

2016. The bonding report contained the same observations and

characteristics of defendant's interactions with A.M.A.F.W. He

noted that the two interacted cheerfully, affectionately, and

positively. In Dr. Figurelli's opinion, it was "evident from the

nature and content of their interaction that [A.W.] and

[A.M.A.F.W.] share a sense of family identity and family

connectedness."

Dr. Figurelli noted defendant's history of substance abuse

and addiction, as well as his prolonged absence from the child's

life during a critical period of her development. Despite these

deficits, Dr. Figurelli opined that permanently severing the

parental bonds between defendant and his daughter would be harmful

to the child and consequently not in her best interest. He stated

that:

35 A-4572-15T3
Given the fact that [A.W.] can, with more
time, present as an appropriate permanent
placement option for [A.M.A.F.W.], it is the
opinion of this examiner that it does
[A.M.A.F.W.] more harm than good to have her
relationship [with] her father terminated.
She appears to feel cared for by her father;
she appears to care for her father; she shares
a sense of family connectedness and family
identity with him; and it appears that she
anticipates that she will maintain their
relationship going forward in her life. The
severance of her relationship [with] her
father and the loss of that attachment are
likely to result in [A.M.A.F.W.] experiencing
severe and enduring emotional and/or
psychological harm.

Dr. Figurelli's testimony at trial was consistent with the

findings, conclusions, and recommendations he expressed in his

report.

Defendant was the last witness to testify. He emphasized

that he had progressed to phase three of the Salvation Army's

four-phase inpatient treatment program. He had submitted clean

urine samples since the date of his admission; despite his past

relapses, he believed he had finally achieved a level of success

sufficient to maintain his sobriety after completing the Salvation

Army's program. When asked how this Salvation Army's program was

different from the programs he had previously attended, defendant

emphasized the spiritual components of his current treatment.

He claimed the current Salvation Army's program has a "true

structure," including group therapy, individual therapy,

36 A-4572-15T3
mentorship, Bible studies, and chapel services at regular

intervals. Defendant also emphasized the importance of the

Salvation Army's "adjunct services[,]" such as treatment staff's

willingness to assist with employment and housing and provide

training on technical and vocational skills.

Defendant testified that he planned to reside with his mother

upon his discharge from the Salvation Army's facility. When

confronted with his mother's earlier statements that she did not

support this plan, defendant stated:

[W]hat the Division probably [doesn't] truly
understand is[] that's my mother. She will
allow me to stay there. The last time I spoke
with my mother was last Sunday. I spoke with
my mother on the fact of, upon me returning
there[;] she has no problem with it.

. . . .

[S]he said as long as I keep up my efforts in
staying clean and working, she has no problem
with it.

Defendant similarly minimized the significance of other relatives

living in his mother's home. "[A]s long as my family is seeing

me do the right thing, they will assist me in just about anything

that I need."

Judge Katz entered a Judgment of Guardianship terminating

defendant's parental rights on May 27, 2016. He found the Division

37 A-4572-15T3
satisfied all four prongs of the "best interest" analysis by clear

and convincing evidence. See
N.J.S.A. 30:4C-15.1(a); N.J. Div.

of Youth & Family Servs. v. A.W.,
103 N.J. 591 (1986). He

identified the evidence for his findings of fact and explained the

legal basis for his conclusions of law in an oral opinion delivered

from the bench. In lieu of reciting the opinion, we incorporate

by reference Judge Katz's well-reasoned decision.

This court is bound to defer to the Family Part's findings of

fact that are "supported by 'adequate, substantial and credible

evidence' [i]n the record." N.J. Div. of Youth & Family Servs.

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

J.T.,
269 N.J. Super. 172, 188 (App. Div. 1993)). Deference is

especially appropriate when the Family Part's factual findings are

"largely testimonial" and involve "questions of credibility."

Cesare v. Cesare,
154 N.J. 394, 412 (1998) (quoting In re Return

of Weapons to J.W.D.,
149 N.J. 108, 117 (1997)). In contrast to

its findings of fact, this court reviews the Family Part's legal

conclusions de novo. N.J. Div. of Youth & Family Servs. v. S.I.,

437 N.J. Super. 142, 152 (App. Div. 2014).

We have taken the time and effort to describe in detail the

evidence the Division presented here to demonstrate the

overwhelming factual and legal support for Judge Katz's decision.

Judge Katz found defendant and T.M.F. exposed A.M.A.F.W. to a

38 A-4572-15T3
substantial risk of physical harm when they left her unattended

at the High Bridge train station. He also found A.M.A.F.W. was

emotionally harmed by defendant's "withdrawal of solicitude,

nurture[,] and care since the time of her removal." Judge Katz's

findings are supported by irrefutable evidence in the record. See

M.M.,
189 N.J. at 279 (2007) (citation omitted).

The record shows defendant failed to visit A.M.A.F.W. for

nineteen months. He failed to make any real effort to engage in

treatment for his significant and chronic substance abuse problem

until late November 2015, more than two years after the Division

removed A.M.A.F.W. from his care. Defendant repeatedly tested

positive for opiates and other illicit substances, thus precluding

the Division from considering him as a viable placement for this

psychiatrically fragile child. Defendant failed to attend

numerous court hearings, thereby demonstrating an utter disregard

for the rule of law and his daughter's well-being. Defendant's

inability to provide A.M.A.F.W. with love, affection, and/or a

home during this time period caused A.M.A.F.W. irrevocable harm

and enormous suffering and distress. This is evidenced by her

severe emotional issues, troubling behavioral concerns and

psychological and psychiatric diagnoses. We thus affirm

substantially for the reasons expressed by Judge Katz in his oral

opinion.

39 A-4572-15T3
Affirmed.

40 A-4572-15T3

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