RECORD IMPOUNDED

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 

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 

NOT FOR PUBLICATION WITHOUT THE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.

7, 2018
2 A-1352-16T4

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.
3 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 
4 A-1352-16T4

Division instituted a Dodd3 removal and placed Vic with a nonrelative 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-camptype 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.
5 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
6 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 cohabitation 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.
7 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 
8 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-interestsof-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
9 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 wellreasoned 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 
10 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.
11 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 
12 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.
13 A-1352-16T4

Affirmed.