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NOT FOR PUBLICATION WITHOUT THE 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 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.
2 A-1638-22

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Essex County, Docket 

No. FG-07-0063-22. 

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 Attorney 

General, of counsel; Lisa J. Rusciano, Deputy Attorney 

General, on the brief). 

Joseph E. Krakora, Public Defender, Law Guardian, 

attorney for minor (Meredith Alexis Pollock, Deputy

Public Defender, of counsel; Julie Elizabeth Goldstein, 

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 for ineffective assistance of 

counsel. We also conclude there exists clear and convincing admissible 

evidence in the record on which the trial judge found the Division of Child 

1

 We use pseudonyms to protect the identity of the family 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-1638-22

Protection and Permanency (Division) proved all four prongs of N.J.S.A. 30:4C15.1(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 Division's interactions with 

defendant. Instead, we incorporate by reference the factual findings and legal 

conclusions contained in Judge Furnari's decision and summarize the facts 

relevant to defendant's claim of ineffective assistance of counsel. 

Jack was born March 2021, to defendant and P.R. (Pearl). At the time of 

Jack's birth, defendant was incarcerated for committing domestic violence 

against Pearl while she was pregnant with Jack. Defendant immediately denied 

paternity. Jack was removed from Pearl's care at birth due to her mental health 

issues and placed with his current resource parents. Pearl was unable to care for 

Jack and voluntarily surrendered her parental rights to Jack prior to trial. 

Throughout the litigation, defendant declined to cooperate with the 

Division and failed to communicate with his appointed trial counsel. He refused 

to sign documents to secure legal representation and stated he was more 

concerned with his pending criminal case than the Division's case. When a 

LabCorp agent arrived at the Essex County Correctional Facility to administer 
4 A-1638-22

the court-ordered paternity test, defendant refused to take the test and sign the 

refusal form. At a subsequent compliance review hearing, defendant declined 

to explain why he was refusing counsel or the paternity 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 fifteen months, all the while 

stating he would seek full custody if he was the father. Yet, when the Division 

asked him for the names of family members who could serve as Jack's potential 

caregivers, defendant asked why he would give the Division any names if Jack 

was not his son. 

Throughout Jack's short life, defendant met with Jack only eight times, 

and spent less than nine hours with him. As detailed 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 the 
5 A-1638-22

guardianship trial. He missed three psychological evaluations scheduled by the 

Division, did not avail himself of parental and mental health resources offered 

to him while in or out of prison, did not obtain steady employment or a 

permanent residence, and was reincarcerated just prior to trial. 

When the Division sought to find relative caregivers 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 mentioned, but she declined.2 In 

April 2021, Pearl named two more relatives as potential caretakers for Jack: 

defendant's sister, also named B.F. (Barbara), and her 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 Kinship 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 incarcerated for an unrelated 

matter. He was contacted by the court and specifically told to appear, but a 

2

 The record shows the Division contacted numerous other individuals, who 

were each ruled out. 

3

 N.J.S.A. 3B:12A-1 to -7.
6 A-1638-22

prison official testified defendant declined and refused 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 testify 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 called 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 defendant repeatedly 

incarcerated over the years—both prior to Jack's birth and thereafter—and 

subject to prior domestic violence complaints involving his other child, who was 

the subject of an unrelated action with the Division. After detailing the factual 

background of the Division's efforts to work with defendant, the court 

determined the Division clearly and convincingly met each prong of the best 

interests standard and established defendant's parental rights should be 

terminated pursuant to N.J.S.A 30:4C-15.1. 

This appeal followed. 

II. 

A. Ineffective assistance of counsel claim. 
7 A-1638-22

 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 important "when a parent's 

'invaluable right to raise a child' is at stake due to the extreme 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. 90, 94 (2016)), in protecting 

a fundamental and constitutionally protected interest, 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 defendant 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 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." B.R., 192 N.J. 

at 311. (adopting standard for ineffective representation set 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 regarding the lawyer's shortcomings 
8 A-1638-22

but determines, on the basis of the full record, that the 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 any defense, make any legal 

argument or objections, and to ensure defendant appeared 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 evidence in [the] case." 

Defendant points to the lack of cross-examination of 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 questioned with 

respect to whether the Legislature's findings, declarations, 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 permits the order of the closing 

arguments, and not its permissibility . . . ." He claims trial counsel violated Rule 
9 A-1638-22

1:7-1(b) by waiving closing statement. Defendant argues 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] defaulted 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 absence as a reason to terminate 

his parental rights, as well as the court's reliance upon hearsay to establish 

defendant's absence was voluntary. He states, because defendant's absence was 

treated as a default, trial counsel should have asserted the court was precluded 

from terminating defendant's parental rights partially on the basis that he did not 

appear for trial. 

 Defendant's arguments are belied by the record, which 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 professionally 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 different with effective counsel. 

192 N.J. at 311. Here, defendant provides no certification as to which witnesses 

his counsel should have called and what evidence should have been addressed. 
10 A-1638-22

He does not certify he did not understand the proceedings or the consequences 

of same. Defendant's claim fails because it is a bald 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 termination of his parental rights. 

The only reference the court made of his absence came before its assessment of 

the best interests standard, and the trial court did not enter a judgment by default. 

There is nothing in the record to demonstrate defendant would have 

achieved a different result absent the claimed deficiencies. Defendant presented 

no parenting plan to care for Jack and the only alternative 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 rights 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 discretion because of its specialized 

knowledge and experience in matters involving parental relationships and the 
11 A-1638-22

best interests of children." N.J. Div. of Child Prot. & Permanency v. A.B., 231 

N.J. 354, 365 (2017) (alteration in original) (quoting N.J. Div. of Youth & Fam. 

Servs. v. F.M., 211 N.J. 420, 427 (2012)). Where a family court relies upon 

evidence adduced at a hearing, we "defer to the factual 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 findings 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). Therefore, the 

family court's decision to terminate parental rights will not be disturbed "when 

there is substantial credible evidence in the record to support the court's 

findings." E.P., 196 N.J. at 104. 

Defendant argues, with respect to the third prong of the best interests 

standard, because the legislature removed qualifying language in the KLG 

statute, which required consideration of KLG when "adoption of the child [was] 

neither feasible nor likely," the new legislation mandates KLG as a preferred 

placement over adoption. Defendant's interpretation of the amendments is 
12 A-1638-22

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 of trial counsel argument 

on counsel's alleged failure to apprise the court of the changes in the KLG statute 

because it is premised on a flawed interpretation. The failure to raise a different 

argument lacking 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 the 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 all the legal requirements for 

a judgment of guardianship as to defendant. The judge's opinion tracks the 

statutory requirements of N.J.S.A. 30:4C-15.1(a), accords 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 written opinion. 

Affirmed.