DCPP VS. F.F., JR. AND J.A., IN THE MATTER OF THE GUARDIANSHIP OF J.L.F. (FG-04-0144-18, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )


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  •                                       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    NOT FOR PUBLICATION WITHOUT THE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-4823-17T1
    NEW JERSEY DIVISION
    OF CHILD PROTECTION
    AND PERMANENCY,
    Plaintiff-Respondent,
    v.
    F.F., Jr.,
    Defendant-Appellant,
    and
    J.A.,
    Defendant.
    _____________________________
    IN THE MATTER OF THE
    GUARDIANSHIP OF J.L.F.,
    a Minor.
    _____________________________
    Submitted January 14, 2019 – Decided January 25, 2019
    Before Judges Fasciale and Gooden Brown.
    On appeal from Superior Court of New Jersey,
    Chancery Division, Family Part, Camden County,
    Docket No. FG-04-0144-18.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Ruth A. Harrigan, Designated Counsel, on
    the briefs).
    Gurbir S. Grewal, Attorney General, attorney for
    respondent (Melissa H. Raksa, Assistant Attorney
    General, of counsel; Amy M. Young, Deputy Attorney
    General, on the brief).
    Joseph E. Krakora, Public Defender, Law Guardian,
    attorney for minor (Meredith A. Pollock, Deputy Public
    Defender, of counsel; Margo E.K. Hirsch, Designated
    Counsel, on the brief).
    PER CURIAM
    Defendant appeals from a June 7, 2018 order terminating his parental
    rights to his son, J.L.F. (the child), born in November 2016. He contends that
    the Division of Child Protection and Permanency (the Division) failed to prove
    the four prongs of the statutory best interests test by clear and convincing
    evidence, and that the judge erred in admitting hearsay evidence in order to
    render her decision. We disagree and affirm.
    I.
    N.J.S.A. 30:4C-15.1(a) requires the Division to prove by clear and
    convincing evidence the following four prongs:
    A-4823-17T1
    2
    (1) The child's safety, health, or development has been
    or will continue to be endangered by the parental
    relationship;
    (2) The parent is unwilling or unable to eliminate the
    harm facing the child or is unable or unwilling to
    provide a safe and stable home for the child and the
    delay of permanent placement will add to the harm.
    Such harm may include evidence that separating the
    child from [her] resource family parents would cause
    serious and enduring emotional or psychological harm
    to the child;
    (3) The [D]ivision has made reasonable efforts to
    provide services to help the parent correct the
    circumstances which led to the child's placement
    outside the home and the court has considered
    alternatives to termination of parental rights; and
    (4) Termination of parental rights will not do more
    harm than good.
    The four prongs of the test are not "discrete and separate," but "relate to and
    overlap with one another to provide a comprehensive standard that identifies a
    child's best interests." In re Guardianship of K.H.O., 
    161 N.J. 337
    , 348 (1999).
    "The considerations involved in determinations of parental fitness are 'extremely
    fact sensitive' and require particularized evidence that address the specific
    circumstances in the given case." 
    Ibid.
     (quoting In re Adoption of Children by
    L.A.S., 
    134 N.J. 127
    , 139 (1993)).
    A-4823-17T1
    3
    "Because of the family courts' special jurisdiction and expertise in family
    matters, appellate courts should accord deference to [the judge's] fact[-]finding."
    Cesare v. Cesare, 
    154 N.J. 394
    , 413 (1998). Thus, the judge's findings of fact
    are not disturbed unless they are "so manifestly unsupported by or inconsistent
    with the competent, relevant and reasonably credible evidence as to offend the
    interests of justice." 
    Id. at 412
     (quoting Rova Farms Resort, Inc. v. Inv'rs Ins.
    Co., 
    65 N.J. 474
    , 484 (1974)). Here, the judge's findings are supported by
    substantial credible evidence in the record.
    "When a biological parent resists termination of his or her parental rights,
    the [trial judge]'s function is to decide whether that parent has the capacity to
    eliminate any harm the child may already have suffered, and whether that parent
    can raise the child without inflicting any further harm." N.J. Div. of Youth &
    Family Servs. v. R.L., 
    388 N.J. Super. 81
    , 87 (App. Div. 2006). The judge's
    factual findings, "should not be disturbed unless 'they are so wholly
    insupportable as to result in a denial of justice,' and should be upheld whenever
    they are 'supported by adequate, substantial and credible evidence.'"        In re
    Guardianship of J.T., 
    269 N.J. Super. 172
    , 188 (App. Div. 1993) (quoting Rova,
    
    65 N.J. at 483-84
    ). "[T]he conclusions that logically flow from those findings
    A-4823-17T1
    4
    of fact are, likewise, entitled to deferential consideration upon appellate
    review." R.L., 388 N.J. Super. at 89.
    II.
    As to the first prong, the judge relied on testimony from Dr. Linda Jeffrey,
    who performed a psychological evaluation of defendant and a bonding
    evaluation of defendant and the child and the foster parents – his paternal aunt
    and uncle – and the child. The judge explained how Dr. Jeffrey noted that
    defendant "had an inability to relate to others in a reality, orderly based way,"
    and this restricted his ability to "provide a psychological or physically safe
    environment for the child." Dr. Jeffrey said that defendant's "disorganized,
    schizophrenic thought or speech affects his ability to form therapeutic alliances
    for the child. He may work the child into his delusions. He focuses on himself
    not his child's needs. He can't convey normal developmental information and
    doesn't focus on the child's normal development needs." The judge felt that
    based on a "reasonable degree of psychological certainty," Dr. Jeffrey concluded
    that "the results of the psychological evaluation and the bonding evaluation
    indicat[ed] that [defendant] was not prepared to provide a minimal level of sa fe
    parenting." The judge explained that
    Dr. Jeffrey opined that the child would likely be placed
    at risk of harm in [defendant's] care and that a minimal
    A-4823-17T1
    5
    level of safe parenting just meant that the child could
    make normal, developmental progress, that the
    caregiver can detect that the child has problems and
    seek the necessary intervention, and based on her
    evaluation[,] . . . [defendant] could not do that.
    Additionally, the judge stated that
    there was not even an affectionate tie between [the
    child] and his father. There was no attachment
    whatsoever, and because there was no attachment[,]
    essentially [defendant] was a stranger and that [the
    child] displayed chronic distress in proximity to
    [defendant].      [Defendant] displayed no child
    management services and [the child is] likely to be
    placed at risk in [defendant]'s care and, in fact,
    severance of that bond will not cause serious and
    enduring harm [to the child] because there is no bond.
    In contrast, the child was "happy in his comfort zone," with the aunt and uncle.
    Dr. Jeffrey felt that severing the child's secure attachment with the aunt and
    uncle would place the child at risk for "serious and enduring harm, particularly
    during this critical period of attachment formation." Dr. Jeffrey also stated the
    child had a "critical need for permanency in order to meet his milestones and
    flourish."
    The focus of this prong should be on "the effect of harms arising from the
    parent-child relationship over time on the child's health and development."
    K.H.O., 
    161 N.J. at 348
    . "Mental illness, alone, does not disqualify a parent
    from raising a child. But it is a different matter if a parent refuses to treat
    A-4823-17T1
    6
    his mental illness [or] the mental illness poses a real threat to a child . . . ." N.J.
    Div. of Youth & Family Servs. v. F.M., 
    211 N.J. 420
    , 450-451 (2012). The
    judge considered that Dr. Jeffrey concluded defendant "was not prepared to
    provide a minimal level of safe parenting" to the child. Dr. Jeffrey opined that
    defendant "did not display an ability to engage in realistic appraisal of his child's
    needs" and that it was possible that defendant could "work the child into [his]
    delusions," or "perceive the child as a threat." Additionally, the judge concurred
    that the child would suffer harm if separated from the aunt and uncle.
    As to prong two, our Supreme Court has opined that
    the second prong may be met by indications of parental
    dereliction and irresponsibility, such as the parent's
    continued or recurrent drug abuse, the inability to
    provide a stable and protective home, the withholding
    of parental attention and care, and the diversion of
    family resources in order to support a drug habit, with
    the resultant neglect and lack of nurture for the child.
    [K.H.O., 
    161 N.J. at 353
    .]
    Here, the judge said that defendant is unwilling or unable to eliminate the harm
    because he has not availed himself of the services . . .
    despite transportation and re-referrals and re-referrals
    and re-referrals and he's got an answer every time about
    why he's not going to services and he's in denial to a
    large extent and he's not truthful about what he needs
    or what he's participating in.
    A-4823-17T1
    7
    Defendant feels that he "complied with the insufficient services that were
    offered when he could."       But there were many instances when defendant
    willingly chose not to attend programs or provided excuses for why he was
    unable to attend. He also told psychological professionals and hospital staff
    members that he did not need assistance and would not comply with resources
    that were available to him.
    As to prong three, the judge found that the Division demonstrated by clear
    and convincing evidence that it offered "more than reasonable services" to
    defendant, but that defendant did "not avail[] himself" of those services. As of
    the trial, defendant did not "say he was engaging in any mental health therapy,
    no [domestic violence] services, no [psychological] therapy, no parenting skills
    programs, [and did] not report[ that] he was on medication for mental health."
    The judge emphasized that defendant was "either in denial or just does not want
    the help and will not avail himself of the necessary treatment."
    Because of his mental health issues, defendant claims that he is entitled to
    reasonable accommodations for services under the Americans with Disabilities
    Act (ADA), 
    42 U.S.C. §§ 12101
     to 12213. He cites to L.A.S., 
    134 N.J. at 139
    ,
    in which our Supreme Court stated that, the considerations involved in
    determinations of parental fitness are "extremely fact sensitive" and require
    A-4823-17T1
    8
    particularized evidence.    He also claims that the Division failed to timely
    provide him with the proper three-zone bus passes that he would have needed to
    see psychologist Dr. Larry Seidman, and attend other services. He further
    argues that the Division failed to provide the mental health professionals with
    collaterals or records.
    For the first time on appeal, defendant argues that the Division violated
    the ADA. Under Title II of the ADA, the Division qualifies as a "public entity,"
    and the Division's services constitute "services, programs, or activities." 
    42 U.S.C. §§ 12131
    (1), 12132. Defendant feels that the Division's "cookie-cutter
    approach" resulted in its failure to make reasonable efforts to provide services
    to help defendant. "'Reasonable efforts' may include consultation with the
    parent, developing a plan for reunification, providing services essential to the
    realization of the reunification plan, informing the family of the child's progress,
    and facilitating visitation." N.J. Div. of Youth & Family Servs. v. M.M., 
    189 N.J. 261
    , 281 (2007). But, "[t]he diligence of [the Division]'s efforts on behalf
    of a parent is not measured by their success." In re Guardianship of D.M.H.,
    
    161 N.J. 365
    , 393 (1999). "These efforts must be assessed against the standard
    of adequacy in light of all the circumstances of a given case." 
    Ibid.
    A-4823-17T1
    9
    Defendant cites to New Jersey Division of Child Protection & Permanency
    v. T.D. (In re M.G.), 
    454 N.J. Super. 353
    , 382-83 (App. Div. 2018) in claiming
    that the Division is mandated to tailor its services based on an individual
    defendant's medical needs. In T.D., we stated that the Division failed to provide
    the defendant, who had multiple sclerosis, with adequate transportation
    assistance. 
    Ibid.
     Yet here, the Division provided passes and also gave defendant
    rides to visits, appointments, and even to see the mother in the hospital. He was
    also specifically told to inform the Division if he needed a ride to an
    appointment.   In T.D., the defendant attempted to inform the Division of
    problems with her accommodations and requested that the Division provide
    more reasonable measures, all while still actively involved in Division sessions
    and classes. But here, defendant refused to participate in its programs and
    mandated treatment.
    In New Jersey Divison of Youth & Family Services v. A.G., 
    344 N.J. Super. 418
    , 424 (App. Div. 2001), we affirmed the termination of parental rights
    of a mother with mental illness. "The majority of the courts that have considered
    the issue have concluded that the ADA does not provide a defense to a
    termination of parental rights proceeding." 
    Id. at 442
    . We stated that applying
    the ADA "to constitute a defense to a termination proceeding would improperly
    A-4823-17T1
    10
    elevate the rights of the parent above those of the child." 
    Ibid.
     Moreover, we
    explained that, "[t]he Division's efforts in providing classes and parenting
    programs must by their very nature take into consideration the abilities and
    mental conditions of the parents." 
    Ibid.
    Additionally, the third prong requires the judge to have "considered
    alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). The
    aunt and uncle have stated numerous times that they intend to adopt the child.
    The fourth and final prong under N.J.S.A. 30:4C-15.1(a) requires the
    Division to prove that "[t]ermination of parental rights will not do more harm
    than good." It has been described as, "a fail-safe against termination even where
    the remaining standards have been met." N.J. Div. of Youth & Family Servs. v.
    G.L., 
    191 N.J. 596
    , 609 (2007). This prong
    cannot require a showing that no harm will befall the
    child as a result of the severing of biological ties. The
    question to be addressed under that prong is whether,
    after considering and balancing the two relationships,
    the child will suffer a greater harm from the termination
    of ties with [his] natural parents than from the
    permanent disruption of [his] relationship with [his]
    foster parents.
    [K.H.O., 161 N.J. at 355.]
    The judge noted that terminating defendant's parental rights does not mean that
    defendant does not love the child or that the child does not love defendant, but
    A-4823-17T1
    11
    instead the focus is on whether the Divison has demonstrated that termination
    of parental rights will not do more harm than good.
    Our Supreme Court has explained that, "[t]he risk to children stemming
    from the deprivation of the custody of their natural parent is one that inheres in
    the termination of parental rights and is based on the paramount need the
    children have for permanent and defined parent-child relationships."        In re
    Guardianship of J.C., 
    129 N.J. 1
    , 26 (1992).       Courts should consider "the
    testimony of a well[-]qualified expert who has had full opportunity to make a
    comprehensive, objective, and informed evaluation of the child's relationship
    with the foster parent." 
    Id. at 19
    . This is precisely what the judge did, despite
    defendant's suggestion that nothing in the record "conclusively establishes that
    [defendant] could not safely raise [the child]."
    III.
    A judge's evidentiary rulings are entitled to deference absent a showing of
    an abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 
    202 N.J. 369
    , 382 (2010). A parent has a right to effective assistance of counsel in
    a termination of parental rights case. N.J. Div. of Youth & Family Servs. v.
    B.R., 
    192 N.J. 301
    , 306 (2007). For a defendant to obtain relief based on
    ineffective assistance grounds:
    A-4823-17T1
    12
    (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."
    [Id. at 307 (quoting Strickland v. Washington, 
    466 U.S. 668
    , 694 (1984); accord State v. Fritz, 
    105 N.J. 42
    , 58
    (1987) (adopting the Strickland standard in New
    Jersey)).]
    Defendant argues that trial counsel's "failure to object to the admission of
    hearsay in medical records from Cooper University Medical Hospital [(CUH)],
    Dr. [Alexander] Iofin and Dr. [Carissa] Ferguson-Thomas without requiring
    expert testimony constituted ineffective assistance of counsel . . . ."
    Alternatively, he claims that admitting these records without expert testimony
    was plain error.
    Although defendant claims that trial counsel did object to information
    provided during a Division worker's testimony from the CUH records, he feels
    that counsel was ineffective because at that time, counsel did not even know that
    the records were already in evidence. Thus, counsel should have properly
    objected when the records were initially introduced.        When counsel was
    informed that the records were already admitted, he withdrew his objection. He
    A-4823-17T1
    13
    then objected a second time, but the judge allowed the testimony as a foundation
    for additional follow-up questions.
    Rule 5:12-4(d) permits "reports by staff personnel or professional
    consultants" into evidence, subject to the requirements of N.J.R.E. 803(c)(6) and
    N.J.R.E. 801(d). Under N.J.R.E. 801(d), a "business" "includes every kind of
    business, institution, association, profession, occupation and calling, whether or
    not conducted for profit, and also includes activities of governmental agencies."
    N.J.R.E. 803(c)(6) governs records of regularly conducted activity and states:
    A statement contained in a writing or other record of
    acts, events, conditions, and, subject to [N.J.R.E.] 808,
    opinions or diagnoses, made at or near the time of
    observation by a person with actual knowledge or from
    information supplied by such a person, if the writing or
    other record was made in the regular course of business
    and it was the regular practice of that business to make
    it, unless the sources of information or the method,
    purpose or circumstances of preparation indicate that it
    is not trustworthy.
    N.J.R.E. 808 provides:
    Expert opinion which is included in an admissible
    hearsay statement shall be excluded if the declarant has
    not been produced as a witness unless the trial judge
    finds that the circumstances involved in rendering the
    opinion, including the motive, duty, and interest of the
    declarant, whether litigation was contemplated by the
    declarant, the complexity of the subject matter, and the
    likelihood of accuracy of the opinion, tend to establish
    its trustworthiness.
    A-4823-17T1
    14
    Here, the circumstances established the trustworthiness of the records.
    In the context of abuse and neglect, we have explained that:
    To be admissible as a business record of the
    Division, a Division report must meet the requirements
    of N.J.R.E. 803(c)(6), whether the report is offered
    under N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-4(d), or In re
    Guardianship of Cope, 
    106 N.J. Super. 336
     (App. Div.
    1969). If a Division report is admissible under N.J.R.E.
    803(c)(6) and meets the requirements of N.J.S.A. 9:6-
    8.46(a)(3), Rule 5:12-4(d), or Cope, the court may
    consider the statements in the report that were made to
    the author by Division staff personnel, or affiliated
    medical, psychiatric, or psychological consultants, if
    those statements were made based on their own first-
    hand factual observations, at a time reasonably
    contemporaneous to the facts they relate, and in the
    usual course of their duties with the Division.
    However, whether the Division report is offered under
    N.J.R.E. 803(c)(6), N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-
    4(d), or Cope, statements in the report made by any
    other person are inadmissible hearsay, unless they
    qualify under another hearsay exception as required by
    N.J.R.E. 805. Expert diagnoses and opinions in a
    Division report are inadmissible hearsay, unless the
    trial court specifically finds they are trustworthy under
    the criteria in N.J.R.E. 808, including that they are not
    too complex for admission without the expert testifying
    subject to cross-examination.
    [N.J. Div. of Child Prot. & Permanency v. N.T., 
    445 N.J. Super. 478
    , 487 (App. Div. 2016).]
    In N.T., because we felt that the diagnoses and opinions were "central to the trial
    [judge]'s finding of abuse or neglect," admitting the psychologists' diagnoses
    A-4823-17T1
    15
    and opinions in her evaluation was not harmless. Id. at 503. There, the trial
    judge "ascribed almost determinative significance to [the psychologist's]
    opinion, which went to the heart of the case." Ibid. (quoting Neno v. Clinton,
    
    167 N.J. 573
    , 587 (2001)). "A hearsay error mandates reversal where it appears
    'the error led the [factfinder] to a result it otherwise might not have reached.'"
    
    Ibid.
     (alteration in original) (quoting Neno, 
    167 N.J. at 586
    ). We also felt that
    "overruling the hearsay objection prevented [the psychologist]'s diagnoses and
    opinions from being tested by cross-examination.           Thus, their improper
    admission constituted a manifest denial of justice and was 'clearly capable of
    producing an unjust result,' requiring reversal." 
    Ibid.
     Here, though, because the
    judge relied on Dr. Jeffrey's testimony in rendering her decision under the four
    prongs, there was not a "manifest denial of justice" requiring reversal.
    "[W]hen the expert is not produced as a witness, the rule requires the
    exclusion of his or her expert opinion, even if contained in a business record,
    unless the trial judge makes specific findings regarding trustworthiness." Id. at
    501.
    In any event, "[a]n expert medical opinion
    contained in a report is generally inadmissible under
    [N.J.R.E. 808's] test because of the complexity of the
    analysis involved in arriving at the opinion and the
    consequent need for the other party to have an
    opportunity to cross-examine the expert." Similarly,
    A-4823-17T1
    16
    psychological evaluations generally "entail[] the
    exercise of subjective judgment rather than a
    straightforward, simple diagnosis based upon objective
    criteria or one upon which reasonable professionals
    could not differ."
    [Ibid. (alterations in original) (citations omitted).]
    We have stated that:
    In the event that such reports contain conclusions
    drawn from the facts stated in them, the reports may
    still be admitted, but they should be treated as no more
    than prima facie evidence of the validity of the
    conclusions contained in them. If the parent produces
    evidence refuting such conclusions, petitioner would
    then have the burden of producing live testimony in
    order to establish their validity.
    In the case of conclusionary statements, the
    author should be a person qualified to give an opinion
    on the subject under discussion (e.g., a psychiatrist or
    psychologist for diagnosis of mental disease or
    impairment), and no conclusion should be received
    unless the report contains a statement of the facts or
    procedures upon which it is based.
    [Cope, 
    106 N.J. Super. at 344
    .]
    In N.T. we said that,
    whether a Division report is offered under N.J.R.E.
    803(c)(6), N.J.S.A. 9:6-8.46(a)(3), Rule 5:12-4(d), or
    Cope, expert opinions and diagnoses in the report are
    inadmissible hearsay unless the trial court specifically
    finds they are trustworthy under the criteria in N.J.R.E.
    808, including that they are not too complex for
    admission without the expert testifying subject to cross-
    A-4823-17T1
    17
    examination. Because the trial [judge] made no such
    finding, and because [the psychologist]'s diagnosis and
    opinion in the [e]valuation are complex, admitting them
    over [defendant]'s hearsay objection was "wide of the
    mark."
    [445 N.J. Super. at 502.]
    Here, the judge did not make a specific finding regarding trustworthiness
    of the CUH records and of Dr. Iofin's or Dr. Ferguson-Thomas's reports, but she
    did not extensively cite them in rendering her opinion on each of the four prongs.
    Instead, the judge referenced the CUH records to show that defendant was
    admitted to the psychiatric unit, why he went to the hospital, and what symptoms
    he reported. She referenced Dr. Iofin's and Dr. Ferguson-Thomas's reports in
    two brief moments in her oral opinion – as demonstration of defendant's history
    of noncompliance with the Division, not as evidence of a complex diagnoses.
    These three records did not provide the basis of her decision.
    Thus, defendant has failed to show a "reasonable probability that, but for
    counsel's unprofessional errors, the result of the proceeding would have been
    different." B.R., 
    192 N.J. at 307
    . Instead, even if the judge would not have
    admitted the CUH record and the two doctors' reports into evidence, based on
    Dr. Jeffrey's testimony, she still would have come to the same conclusion.
    A-4823-17T1
    18
    Defendant has failed to meet both prongs of Strickland. He has not proven
    that trial counsel's performance was deficient, or so egregious that he was not
    functioning as defendant's constitutionally guaranteed counsel. Trial counsel
    did object to the admission of this evidence, but the judge chose to allow the
    records in and afford them due weight. Second, defendant has not proven that
    counsel's deficient performance prejudiced the defense, or that "but for counsel's
    unprofessional errors, the result of the proceeding would have been different."
    Strickland, 
    466 U.S. at 694
    .        Even if the documents would have been
    inadmissible, the judge still based her decision on Dr. Jeffrey's testimony, thus
    rendering any error harmless and unworthy of reversal.           Thus, defendant's
    ineffective assistance of counsel claim must fail.
    Defendant also claims that the judge committed plain error.
    Any error or omission shall be disregarded by the
    appellate court unless it is of such a nature as to have
    been clearly capable of producing an unjust result, but
    the appellate court may, in the interests of justice,
    notice plain error not brought to the attention of the trial
    or appellate court.
    [R. 2:10-2.]
    But again, as the judge primarily referenced Dr. Jeffrey's testimony and report
    in her opinion, any error in admitting the documents would be harmless and
    unworthy of reversal.
    A-4823-17T1
    19
    Affirmed.
    A-4823-17T1
    20