### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1638- 22 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,

v. P.R., Defendant, and M.J., Defendant-Appellant.

_______________________ IN THE MATTER OF THE GUARDIANSHIP OF B.J., a minor.

_______________________

Submitted November 6, 2023

– Decided December 1, 2023 Before Judges Berdote Byrne and Bishop-Thompson.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1638

- 22 On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG

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- 0063 -22. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the briefs ). Matthew J. Platkin, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorn ey General, of counsel; Lisa J. Rusciano, Deputy Attor ney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Julie Elizabeth Goldst ein, Assistant Deputy Public Defender, of counsel and on the brief).
PER CURIAM Defendant appeals the trial court's termination of his parental rights to B.J. (Jack) 1 following trial and claims ineffective assistance of counsel. Because we find defendant was not prejudiced by his counsel's representation, we conclude defendant fails to demonstrate a prima facie case f or ineffective assistance of counsel. We also conclude there exists clear and c onvincing admissible evidence in the record on which the trial judge fou nd the Division of Child

1 We use pseudonyms to protect the identity of the fa mily members relevant to this appeal pursuant to Rule 1:38 -3(d)(12) and for ease of reference. In doing so, we mean no disrespect to the family members.3 A- 1638

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Protection and Permanency (Division) proved all fou r prongs of N.J.S.A. 30:4C

15.1 (a) and affirm substantially for the reasons set forth by the Honorable Gary
J. Furnari, J.S.C. in his well-reasoned and thorough 65 -page opinion.
I. We will not recite in detail the history of the Div ision's interactions with defendant. Instead, we incorporate by reference th e factual findings and legal conclusions contained in Judge Furnari's decision a nd summarize the facts relevant to defendant's claim of ineffective assist ance of counsel. Jack was born March 2021, to defendant and P.R. (Pe arl). At the time of Jack's birth, defendant was incarcerated for commit ting domestic violence against Pearl while she was pregnant with Jack. De fendant immediately denied paternity. Jack was removed from Pearl's care at b irth due to her mental health issues and placed with his current resource parents . Pearl was unable to care for Jack and voluntarily surrender ed her parental rights to Jack prior to trial. Throughout the litigation, defendant declined to co operate with the Division and failed to communicate with his appointed trial counsel. He refused to sign documents to secure legal representation an d stat ed he was more concerned with his pending criminal case than the D ivision's case. When a LabCorp agent arrived at the Essex County Correctio nal Facility to administer4 A- 1638

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the court-ordered paternity test, defendant refused to take the test and sign the refusal form. At a subsequent compliance review he aring, defendant declined to explain why he was refusing counsel or the pater nity test. He stated he simply did not want to discuss the child. Despite a court order and despite knowing Jack was in resource care , defendant continued to refuse to take the paternity test on four separate occasions : in April, June, and October 2021, and March 2022. In total, defendant stalled the establishment of paternity for fif teen months, all the while stating he would seek full custody if he was the fa ther. Yet, when the Division

as ked him for the names of family members who could s erve as Jack's potential caregivers, defendant asked why he would give the D ivision any names if Jack was not his son. Throughout Jack's short life, defendant met with Ja ck only eight times, and spent less than nine hours with him. As detail ed by Judge Furnari, although defendant stated he wanted full custody of Jack and would care for him once he learned he was Jack's biological father, defendant failed to present an adequate parenting plan, failed to address his untreated mental health and anger management issues, and failed to secure employment or stable housing during the course of Jack's placement in resource care, up through and including the5 A- 1638

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guardianship trial. He missed three psychological evaluations scheduled by the Division , did not avail himself of parental and mental heal th resources offered to him while in or out of prison, did not obtain st eady employment or a permanent residence, and was reincarcerated just pr ior to trial. When the Division sought to find relative caregiver s for Jack, all efforts failed. Pearl named B.F., Jack's grandmother, but B.F. was unable to care for the child. Pearl's godmother, M.O., was also menti oned, but she declined. 2 In April 2021, Pearl named two more relatives as poten tial caretakers for Jack: defendant's sister, also named B.F. (Barbara), and h er cousin, A.F. Barbara stated she could not financially support Jack at that time. A.F. stated he resided in Texas and could not care for Jack because he and his wife worked long hours. The Division explored Barbara again when defendant volunteered her to serve as Jack's K inship Legal Guardian, 3 but she failed to remain in contact with the Division and did not complete her KLG assessment. At trial on January 11, 2023, defendant was incarce rated for an unrelated

matter

. He was contacted by the court and specifically tol d to appear, but a

2 The record shows the Division contacted numerous ot her individuals, who were each ruled out.

3 N.J.S.A. 3B:12A-1 to - 7.6 A- 1638

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prison official testified defendant declined and re fused to sign the court refusal form. Defendant's designated counsel appeared but did not call him to testify. She did not have any expert or lay witnesses testif y on defendant's behalf and declined to make an opening statement or object to the State's evidentiary exhibits. She also waived summation. The State ca lled only one witness, the Division caseworker. In its opinion, the trial court noted defendant and Pearl's relationship was marred by a history of domestic violence, with defe ndant repeatedly incarcerated over the years

— both prior to Jack's birth and thereafter

— and subject to prior domestic violence complaints invol ving his other child, who was the subject of an unrelated action with the D ivision

. After detailing the factual background of the Division's efforts to work with d efendant, the court determined the Division clearly and convincingly me t each prong of the best interests standard and established defendant's pare ntal rights should b e terminated pursuant to N.J.S.A 30:4C-15.1. This appeal followed.
II. A. Ineffective assistance of counsel claim.7 A- 1638

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New Jersey affords parents the right to effective counsel in termination proceedings. N.J. Div. of Youth & Fam. Servs. v. M .D., 417 N.J. Super. 583, 609 (App. Div. 2011). Counsel is particularly importa nt "when a parent's 'invaluable right to raise a child' is at stake due to the ext reme importance of the litigation," In re Adoption of Child by C.J., 463 N.J . Super. 254, 261 (App. Div. 2020) (quoting In re Adoption of J.E.V., 226 N.J. 9 0, 94 (2016)), in protecting a fundamental and constitutionally protected intere st, N.J. Div. of Youth & Fam. Servs. v. B.R., 192 N.J. 301, 305 (2007). The defendant must establish each of the Strickland v. Washington , 466 U.S. 668 (1984) factors: (1) objectively deficient trial counsel that (2) prejudiced the def endant to the extent that there is a reasonable probability of a different outcome at trial but for trial counsel's errors. M.D., 417 N.J. Super. at 609-10 (quoting B .R., 192 N.J

. at 307). Defendant's "appellate counsel must provide a detai led exposition of how the trial lawyer fell short and a statement regardi ng why the result would have been different had the lawyer's performance not bee n deficient." B.R., 192 N.J.
at 311. (adopting standard for ineffective representation s et forth in Strickland , 466 U.S. at 694 and in State v. Fritz, 105 N.J. 42, 58, (1987) ). "[I]f the panel accepts as true appellant's representations regardi ng the lawyer's shortcomings8 A- 1638

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but determines, on the basis of the full record, that t he outcome would not have changed, that will be the end of it." Ibid. On appeal, defendant argues he was denied effective assistance of counsel based on his trial attorney's failure to present an y defense, make any legal argument or objections, and to ensure defendant app eared for trial. In addition, he claims counsel was ineffective because she "did not object to the court's consideration of [his] absence from trial, which was not e vidence in [the] case." Defendant points to the lack of cross-examination o f the Division's only witness. The only issue defendant asserts his counsel should have addressed on crossexamination relates to the recent amendments to the best interests test codified
at N.J.S.A. 30:4C -15.1(a). The Division's witness "was not question ed with respect to whether the Legislature's findings, decl arations, and amendments to the . . . 'best interest' test and the KLG Act were considered . . . ." He claims counsel should have been aware of the change in the relevant law and advocated appropriately. Defendant also sets forth a novel interpretation of Rule 1:7 -1(b). According to defendant, Rule 1:7 -1(b) "can be interpreted as making closing arguments mandatory because the language only permi ts the order of the closing arguments, and not its permissibility . . . ." He claims trial counsel violated Rule9 A- 1638

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1:7 -1(b) by waiving closing statement. Defendant argu es trial counsel "did not do anything to protect his rights and might as well have not been present at all. It is as if defendant was alleged to [have] default ed and trial counsel conceded that default." With regards to his absence, defendant contends his trial counsel should have objected to the court's consideration of his a bsence as a reason to terminate his parental rights, as well as the court's relianc e upon hearsay to establish defendant's absence was voluntary. He states, beca use defendant's absence was treated as a default, trial counsel should have ass erted the court was precluded from terminating defendant's parental rights partia lly on the basis that he did not appear for trial. Defendant's arguments are belied by the record, wh ich sets forth no basis for his ineffective-assistance- of -counsel claim. Defendant fails to show his trial counsel's performance fell outside the realm of pro fessionally acceptable performance, and, but for this claimed deficiency, there is a reasonable probability he would have prevailed at trial. B.R. requires defendant provide a detailed explanation of how the result would be dif ferent with effective counsel. 192 N.J. at 311. Here, defendant provides no certification as to whi ch witnesses his counsel should have called and what evidence sh ould have been addressed.10 A- 1638

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He does not certify he did not understand the proce edings or the consequences of same. Defendant's claim fails because it is a b ald assertion. See Strickland, 466 U.S. at 687 , 699- 700

. Contrary to defendant's claim, the trial court did not consider defendant's absence as evidence that weighed in favor of termin ation of his parental rights. The only reference the court made of his absence ca me before its assessment of the best interests standard, and the trial court di d not enter a judgment by default

. There is nothing in the record to demonstrate defen dant would have achieved a different result absent the claimed defi ciencies. Defendant presented no parenting plan to care for Jack and the only alt ernative he presented, care provided by his sister Barbara, failed factually. Defendant also failed to demonstrate how counsel's failure to advocate for KLG would have caused a different result, because both the Division and court considered and found KLG futile because of Barbara's refusal to participate.
B. Termination of parental rights. A trial court's decision to terminate parental righ ts is subject to limited appellate review. N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007). Indeed, a family court has "broad discreti on because of its specialized kno wledge and experience in matters involving parental relationships and the11 A- 1638

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best interests of children." N.J. Div. of Child Prot. & Permanency v. A.B., 231 N.J. 354, 365 (2017) (alteration in original) (quoti ng N.J. Div. of Youth & Fam.
Servs. v. F.M., 211 N.J. 420, 427 (2012)). Where a family c ourt relies upon evidence adduced at a hearing, we "defer to the fac tual findings . . . because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case ' that can never be realized by a review of the cold record." N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 293 (2007)). We defer to the factual fin ding s of family courts "unless they are so 'wide of the mark' that our intervention is necessary to correct an injustice." F.M., 211 N.J. at 427 (quoting E.P., 196 N.J. at 104). Ther efore, the family court's decision to terminate parental right s will not be disturbed "when there is substantial credible evidence in the recor d to support the court's findings." E.P., 196 N.J. at 104. Defendant argues, with respect to the third prong o f the best interests standard, because the legislature removed qualifyin g language in the KLG statute, which required consideration of KLG when "a doption of the child [was] neither feasible nor likely," the new legislation m andates KLG as a preferred placement over adoption. Defendant's interpretatio n of the amendments is12 A- 1638

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unavailing in light of the Supreme Court's recent holding in New Jersey Division of Child Protection & Permanency v. D.C.A., ___ N.J. ___, ___ (2023) (slip op.

at 30

- 33 ). Nor can defendant base his ineffective assistance o f trial counsel argument on counsel's alleged failure to apprise the court o f the changes in the KLG statute because it is premised on a flawed interpretation. The failure to raise a different argument lack ing support in law will not satisfy the standard. See State v. Echols, 199 N.J. 344, 360-61 (2009) (holding trial counsel was not ineffective for failing to raise a losing argument.). Judge Furnari reviewed the evidence presented at th e trial, made factual findings as to each prong of N.J.S.A. 30:4C-15.1(a) , and thereafter concluded the Division met by clear and convincing evidence a ll the legal requirements for a judgment of guardianship as to defendant. The ju dge's opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), a ccords with our wellestablished case law on the matter, e.g., D.C.A., _ __ N.J. at ___ (slip op. at 33- 35) , and is amply supported by the record. We affirm substantially for the reasons Judge Furnari expressed in his cogent writt en opinion. Affirmed.