DCPP v. E.M.C., IN THE MATTER OF THE GUARDIANSHIP OF A.E.C.

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4577-15T2
NEW JERSEY DIVISION
OF CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
APPROVED FOR PUBLICATION
A.S.K., and T.T.,
January 23, 2019
Defendants,
APPELLATE DIVISION
and
E.M.C.,
Defendant-Appellant.
_________________________________
IN THE MATTER OF THE GUARDIANSHIP
OF N.D.K., A.E.C., and E.S.K.,
minors.
_________________________________
Submitted February 7, 2017 – Decided May 23, 2017
Before Judges Espinosa, Suter and Guadagno
(Judge Guadagno dissenting).
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FG-07-0197-15.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kourtney J.A. Knop, Designated
Counsel, on the briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Andrea M. Silkowitz,
Assistant Attorney General, of counsel; Paul
H. Juzdan, Deputy Attorney General, on the
brief).
Joseph E. Krakora, Public Defender, Law
Guardian, attorney for minor A.E.C. (Tracye
Wilson Elliot, Designated Counsel, on the
brief).
PER CURIAM
This guardianship matter initially concerned three children
born to defendant A.K. (Ali).1 Defendant E.M.C. (Eric) is the
father of one of those children, A.E.C. (Adam), and appeals from
an order that terminated his parental rights to his son. We
affirm.
Ali's parental rights to all three of her children were also
terminated. Because she has not appealed, our review of the facts
focuses on Eric and his relationship with Adam.
I.
Adam was born on November 14, 2009. Although Eric reported
that his relationship with Ali ended approximately seven months
earlier, he is listed as the father on Adam's birth certificate.
Adam began residing with Eric in March 2012 after Ali
contacted him through Facebook. The other residents of the three
bedroom apartment were: Eric's fiancée, N.R. (Nell), his
1
We use initials and pseudonyms to protect the privacy of the
parties and minor child.
2 A-4577-15T2
biological child with Nell, M.C., (born August 14, 2011), Nell's
two children and Eric's sister. Before Adam came to live with
him, Eric had last seen his son in July 2011. He told the
caseworker he had been unable to see him more frequently because
he was working on construction jobs out of town.
The first referral to the Division of Child Protection and
Permanency (the Division) was made in April 2012, after Eric
brought twenty-nine month-old Adam to the pediatrician with severe
eczema. Adam was undernourished, weighing twenty-one pounds, the
weight of a child half his age. His speech was mumbled. Eric
learned from the pediatrician that Adam had not been to the doctor
in over two years and was behind in his immunizations. Eric stated
his earlier attempt to take Adam to the doctor had been thwarted
because Ali failed to provide him with the child's "medical card."
Eric cooperated with the Division's investigation, allowing
access to his home, providing his birth date, phone number, and
social security number as well as contact information for Eric's
mother and grandmother. Eric advised the caseworker he had filed
for legal and residential custody of Adam in March 2012 and was
told that, because he was in arrears on his child support
obligation, he needed to provide confirmation he had employment
that would permit him to reduce his arrears. The Division provided
a bed for Adam, who was then sleeping in a bed with two other
3 A-4577-15T2
children. The April 2012 investigation summary reported Eric
"followed-up with all the child's medical appointments" and Adam
was "now up to date with his immunizations and . . . receiving
treatment for his eczema." Because Adam was residing with Eric,
the allegation of abuse and neglect against Ali was deemed
unsubstantiated.
In September 2012, a second referral to the Division was made
by an anonymous neighbor of Ali's, reporting drug use by Ali, her
sister and mother while children were in their care. The reporter
stated she observed Ali smoking marijuana along with her mother;
that Ali's four-year-old child, N.K. (Nick), was "always" outside,
unsupervised, and ate dry, uncooked noodles. The harm alleged was
substantial risk of physical injury and inadequate supervision.
The investigation confirmed Adam continued to reside with Eric at
this time and, although child welfare concerns persisted regarding
Ali's admitted drug use, the allegations of neglect and inadequate
supervision were deemed to be unfounded.
Ali gave birth to a third child, E.S.K. (Eddie), on June 24,
2013, and alleged Eric was the biological father. Nell was
displeased that Eric had another child with Ali and, by July 2013,
Adam returned to live with Ali.
In December 2013, the Division filed for and was granted care
and supervision of all three of Ali's children (the FN litigation).
4 A-4577-15T2
On April 9, 2014, the Division executed an emergency removal of
the three children from Ali's residence pursuant to N.J.S.A. 9:6-
8.29 and -8.30. Initially, the children were placed with Ali's
cousin, S.K. However, in August 2014, S.K. advised the Division
that she wanted all three children removed. The children were
then placed with M.L. (Maisie), a resource identified by Ali. The
Division was unable to contact Eric for other suggested resources
because his whereabouts were unknown.
In May and June 2014, the Division embarked upon an extensive
search to locate Eric. The search ended, by coincidence, on June
18, 2014, during an unannounced home visit to Ali. Eric emerged
from her residence as Ali was speaking with the caseworker. The
caseworker exchanged contact information with Eric. She also
advised him a Family Team Meeting was scheduled for June 23 at the
Division's Newark office and it was important for him to attend.
The caseworker contacted Eric on the day of the meeting to confirm
he would attend. He stated he would not attend because his
grandmother was hospitalized with an unknown illness.2 The
caseworker stressed the importance of his attendance and stated
if he could not attend, he needed to remain in contact with her
so the Division could discuss the permanency plan for his children.
2
No documentation was ever provided to corroborate this
statement.
5 A-4577-15T2
Thereafter, the Division was unable to contact Eric because his
telephone number was shut off. As of January 2015, Eric had not
contacted the caseworker.
The Division's goal changed from reunification for the three
children to adoption in January 2015 and a guardianship complaint
was filed in February 2015.
Thereafter, the Division was again unable to locate Eric for
an extended period of time. Rosalyn Moulton, the Primary Worker
for the Division on this matter, testified she was in the process
of checking addresses for him in January 2016 when his grandmother
provided an address for him in East Orange. While she was on her
way there, she received a call from Eric, who had been called by
his grandmother, and was then able to meet with him.
Eric's first appearance in the guardianship litigation was
on January 14, 2016, approximately eleven months after it had been
initiated. Although he had paid child support for Adam without
challenging paternity, Eric requested a paternity test.3 Eric's
attorney represented that, pending the results of the paternity
test, Eric "would like to be a placement. He's willing to work
with the Division, do whatever he needs to do." Eric's attorney
3
He also requested a paternity test regarding Eddie, which showed
he was not the father of that child.
6 A-4577-15T2
also asked for visitation to be scheduled once paternity was
established. The Division did not object.
The trial judge engaged in a colloquy with Eric regarding the
"road map" of the litigation and explained:
[T]hat takes a couple of weeks to get a
paternity test. You'll have to go and they
just take some saliva or something like that.
And, then, you're certainly entitled to be
eligible to parent your child if you wish.
The Division probably will have to assess you
and I mean, that's kind of a harsh term, but
they just have to see, you know, if things are
appropriate. We just want the children to be
in safe appropriate homes. And they'll have
to establish a plan and a goal with respect
to you. And . . . you have an attorney . . .
and you have a caseworker. If you feel that,
you know, you have questions that aren’t being
answered or anything along those lines you
cal[l] your attorney. She's very good and
she'll work with the State's attorney and try
to resolve any of your issues. And anything
that can't be resolved they'll bring to me and
I'll resolve it.
The Division scheduled Eric and Nell for psychological
evaluations for February 3, 2016 with Dr. Mark Singer, a licensed
psychologist.
Having been informed that Eric was employed,4 the judge stated
he would try to set court dates that were as convenient as he
4
Because Eric had represented to the caseworker he was
unemployed, the Division asked him to provide information and pay
stubs. Eric then clarified he was going to begin his employment
the following week.
7 A-4577-15T2
could around Eric's schedule. He repeatedly asked Eric if he had
any questions and Eric replied he had none.
The judge told Eric he would like to schedule return dates
every thirty days in the guardianship matter and asked Eric if he
knew what his schedule was. Eric replied he did not know because
the scheduler at work was out of town. After consulting with
counsel, the judge scheduled the next appearance for February 12,
2016.
Eric appeared on the next hearing date. He had completed the
paternity test on the previous day. Both Eric and Nell were
scheduled for a psychological evaluation with Dr. Singer on
February 15, 2016. The judge confirmed Eric knew where Dr. Singer
was located and that the Division had provided him with a bus card
to get there.
Observing that the guardianship case was one year old, the
judge stated he had to set a trial date. The deputy attorney
general (DAG) representing the Division demurred, explaining:
[T]he problem with this is [Eric's] first
appearance in this case was just when we last
appeared.
. . . .
So we would have to give him an opportunity
to engage in the litigation. He's presented
himself as a plan and the Division did meet
with him. But we're unsure of what's going
8 A-4577-15T2
to happen with [Eric] because he just entered
the litigation.
The judge inquired further to get a measure of what was
necessary to get the case ready for trial. He asked Eric directly,
"are you interested in parenting?" When Eric stated, "[y]es," the
judge replied, "[g]ood." The judge ascertained the caseworker had
been to Eric's residence and then said to the DAG, "[a]nd, so, you
just need an evaluation of him?" She agreed and also stated there
were a few other outstanding issues. The judge then addressed
Eric again:
THE COURT: All right. I'm going to still
set trial dates and the
Division will work with you and
we'll see where we are come
April, May.
[ERIC]: All right.
THE COURT: Okay? Do you have any questions
for me by the way?
[ERIC]: No, sir.
After learning Eric believed he was Adam's father even without
the paternity test results, the judge asked about the apparent
delay in his involvement in the litigation. The DAG advised Eric
had been involved in the FN litigation for a brief time and then
"went missing." The judge questioned Eric:
THE COURT: Do you want to parent [Adam]?
[ERIC]: Yes.
9 A-4577-15T2
THE COURT: And why were you not involved
earlier in the litigation?
[ERIC]: Because during that time the
mother she had, you know, a lot
of trouble. She didn’t like my
fiancée, so both of them was
going back and forth at that
time. So to not have no
trouble I just told her look,
I will visit him with you and
that’s how I see him. But she
wouldn’t let me come to her
mother's house, because that's
where she was staying. And her
mother didn’t want me there.
So I couldn’t see him at all.
[DAG]: But the child was in placement
and [Eric] was aware that the
child was in placement, so I'm
not speaking about the time
when [Adam] was with the
mother. It's when the child
was in placement.
[ERIC]: Oh, yes, about that. I was
given a number to call the
lady.
THE COURT: For visitation?
[ERIC]: Yeah, the lady, but every time
I called, no answer.
. . . .
THE COURT: [Y]ou're not visiting with
[Adam] though are you?
[ERIC]: No.
THE COURT: Well, do you want to?
10 A-4577-15T2
[ERIC]: Yes, I do, but I just didn’t —
I know where she lives, but I
just didn’t want to —
. . . .
THE COURT: So the Division will
facilitate it. You don’t have
to go through the mother if you
want visitation. You get your
own visitation, do you
understand?
[ERIC]: Yes.
THE COURT: Do you want that?
[ERIC]: Yes.
THE COURT: Are you going to go? We're
going to set it up?
[ERIC]: Yes.
THE COURT: Okay. You have every right.
Eric and his family lost their home in a fire on February 15,
2016. Moulton testified the Division provided Eric with a list
of resources to deal with the loss caused by the fire. She
continued telephone contact with him while he was living in a
hotel and, thereafter, with his sister.
Eric attended the next proceeding on March 10, 2016.
Following receipt of the paternity test results, Eric was
adjudicated to be Adam's father. Because Eric and Nell had been
unable to attend the scheduled psychological evaluation as a result
of the fire, the evaluation was re-scheduled for April 6. Eric
11 A-4577-15T2
did not object to this date. Once again, the judge addressed Eric
directly and confirmed he knew the date and where he needed to go.
The judge also explained, "[s]o the reason we need an evaluation
is to see if anything needs to be done and what the issues are,
okay? So it's important you go on the sixth, April 6th." The
next hearing date was scheduled for April 13.
Eric did not attend the April 6 psychological evaluation or
the April 13 proceeding. The DAG advised the court the matter
would not be ready to proceed on the scheduled trial date of May
4 because Eric had not yet completed the psychological and bonding
evaluations. Eric was reached by telephone, placed under oath,
and provided the following explanation:
The reason why I missed the appointment is
because I went downtown local Penn Station and
the 71 to Livingston came and I got on that
one. And when the lady told me that she
doesn’t go near the office I had got off and
it was 1:30 at that time. So I was at the
other bus stop waiting for the correct bus and
it didn’t reach me until 3:30. So I didn’t
want to appear at the office a whole hour late.
So I called in for him to call me back and
reschedule and I didn’t get no call back that
whole day.
The trial judge reminded Eric that it was his obligation to
get on the right bus. Eric's attorney represented she had
tentative dates for defense evaluations for April 27 and 29. While
Eric was on the telephone, the trial judge expressed his
12 A-4577-15T2
displeasure and frustration that the Division's expert was unable
to schedule a new date for Eric's evaluations for two months and
observed he would probably have to adjourn the trial because the
evaluations were not completed. He asked the DAG to have Dr.
Singer available by telephone for their next conference on April
18 if he could not fit Eric in for an evaluation for two months.
Eric did not attend the April 18 hearing. The DAG advised
the court of the failed effort to have Eric evaluated that day.
At her request, Dr. Singer had changed travel plans, paying a fee
to change the plans, so he could conduct the evaluation of Eric
that morning at 9 a.m. Eric was contacted and said he would be
available. The DAG explained that the plan fell apart, however:
Dr. Singer got a call this morning . . . a
little bit after seven, [Eric] indicated that
he wasn’t sure what time he would be coming
to the evaluation. He left Dr. Singer a phone
number to reach out to him. Dr. Singer placed
several calls to him and never got a response.
The caseworker was able to get in touch with
[Eric] and [Eric] indicated that he had a
family emergency with one of his other
children.
[(Emphasis added).]
Eric's attorney explained his daughter suffered from sickle-
cell anemia; Eric had been in the hospital all night and "[t]hey
were scrambling to find child care for the other children so that
his fiancée could stay with the child in the hospital while he
13 A-4577-15T2
went to the evaluation." She represented Eric would get medical
records to document the family emergency. No documentation of the
medical emergency was ever provided.
Turning to scheduling, the judge asked the status of
evaluations. The Division still required an evaluation of Eric
by Dr. Singer. Eric's attorney represented the defense
psychological and bonding evaluations had been rescheduled for May
10 and 17.
A case management review hearing was held on May 23, 2016.
Eric had been scheduled for evaluation by Dr. Singer at 9:00 that
morning the fourth scheduled date. He did not appear. The DAG
advised that the case manager received a text message from Eric
that morning saying he had a conference with one of his children.
Eric's attorney said she had received a text message from him at
about 6:30 a.m. saying his fiancée was sick and he had no one else
to care for the children. She said, "[h]is fiancée is very sick
in bed, so he's taking care [of the child] and I think he might
have had to attend a school thing in her place." An effort to
telephone Eric was futile, reaching only his voicemail.
Eric's attorney represented that the defense evaluations were
completed on May 17 and asked that another attempt be made to
schedule an evaluation by Dr. Singer. Arguing that Eric had made
efforts to participate, she stated he wanted "an opportunity to
14 A-4577-15T2
raise his son. And he understands the seriousness of the
litigation and . . . we've had many frank discussions about the
need for him to attend these evaluations which makes me feel as
if these are legitimate excuses."
The judge then reviewed the chronology of missed evaluation
appointments.5 The first evaluation on February 15 was missed as
a result of the fire, the occurrence of which was confirmed with
the Red Cross. The second scheduled evaluation, on April 6, was
missed because Eric got on the wrong bus. It was represented that
Eric missed the third scheduled evaluation, on April 18, because
two of his daughters were rushed to the hospital for sickle-cell
anemia-related issues.6 Despite his counsel's requests, he had
not provided her with any documentation of that medical emergency.
The two emails Eric sent on the morning of May 23 were then read
to the court. The one sent to the Division at 9:45 a.m. stated:
Good morning. Sorry, I missed your call. I
was in a school conference for my son. I was
going to call you but I'm driving[,] the bus
card came up missing and I got to get . . .
this truck back to my sister. So I won't make
it to this appointment with Dr. Singer.
Eric's attorney reported she had been "very stern" with him
about the need to attend the evaluation and believed he was going
5
Nell also missed each of the scheduled evaluations.
6
On April 18, the representation had been that one daughter was
ill.
15 A-4577-15T2
to attend because, in response to her advice, he stated, "no
problem." Nonetheless, he failed to appear. Although the judge
had consistently expressed sympathy and patience with the reasons
previously proffered for Eric's failures to attend the
evaluations, the conflicting reasons given for the failure that
day presented a challenge to his equanimity. The judge questioned
why Eric was "going to a school conference if he's home taking
care of kids if the fiancée is sick," and further observed there
was no answer when Eric was called.
The trial judge agreed to consider scheduling a fifth date
for Eric's evaluation by Dr. Singer but cautioned that if he did
not appear, Eric would forfeit his opportunity to present his own
expert. He also required Eric to produce documentation of the
sickle-cell anemia hospital visit. The judge scheduled the next
conference for June 1 to determine if a fifth evaluation date
would be scheduled.
Eric had notice of the June 1 conference but did not appear
in person and was not available to participate by telephone. His
attorney stated, "[h]e's taking care of his children and they're
screaming and crying and he can't get to the phone." The DAG
advised Dr. Singer could perform an evaluation of Eric on June 10.
Eric's attorney stated she had stressed to him how important it
was for him to provide her with documentation of his daughters'
16 A-4577-15T2
hospitalization. He replied they had lost the discharge papers
and, although he agreed to get copies or provide the name of the
doctor for her, he had failed to do so. The judge asked the DAG
if the Division was willing to give Eric a fifth attempt at the
evaluation, and she answered, "[y]es." The judge again emphasized
that if Eric failed to attend a fifth evaluation date, he would
be precluded from presenting his own expert. He scheduled June
10 as the date on which Dr. Singer would evaluate Eric and, if
Eric did not appear, the trial would proceed.
On June 7, 2016, Eric appeared at the Division office to
obtain his bus card. Moulton explained to him both the trial and
his evaluation with Dr. Singer were scheduled for 9:00 a.m. on
June 10. He replied he had an appointment at 10:30 a.m. for
Section 8 housing and he was concerned he would lose his housing
if he missed that appointment. Moulton understood the importance
of that meeting but stressed the potential consequence of failing
to appear for the evaluation, explaining that, at this trial, "we
are going to terminate . . . parental rights." She told him it
was possible to work things out if he could come to court at 9:00
a.m., meet with the doctor and then leave.
Eric did not appear for the evaluation or for trial on June
10, 2016.
17 A-4577-15T2
Although he had requested visitation with Adam once paternity
was established, Eric's inconsistency in appearing for scheduled
events also adversely impacted his visits with Adam. From the
time he was adjudicated Adam's father until the trial, Eric had
only two hours of supervised visitation and did not avail himself
of any visits with Adam at the foster home even though he had the
ability to do so. He failed to attend scheduled intake
appointments to initiate visitation on March 22 and 24, 2016. When
Eric did not show up for the first appointment, the caseworker
called him. He stated he was unable to attend because he did not
have child care for his children. When Eric neither appeared nor
called for the second scheduled appointment, the caseworker
contacted him again. He sent a message that he had received a
call for a job interview and could not miss the interview. It was
not until the third scheduled appointment that Eric attended the
intake appointment.
On March 30, 2016, Eric had a supervised visit with Adam at
the Division. The caseworker met with Eric, discussed rescheduling
his intake appointment, informed him of the scheduled bonding
evaluation and gave him a bus card for the evaluation. Eric had
another visit with Adam on April 5, 2016. Each of the visits with
Adam were positive.
18 A-4577-15T2
A visit scheduled for May 17, 2016 was canceled because Eric
was scheduled for the defense bonding evaluation. Eric failed to
appear for the next scheduled visit on May 24, 2016, and, when he
was called, stated he "forgot about today's visit and will not be
able to make it." A visit scheduled for May 31 was canceled
because Eric failed to confirm the visit twenty-four hours in
advance.
At the time of trial, Adam had been living with Maisie for
approximately two years. Moulton described Adam as having special
needs. He was diagnosed with attention-deficit/hyperactivity
disorder (ADHD), and was receiving services that included
individual therapy, in-home behavioral assistance and speech
therapy.
Dr. Singer was qualified as an expert in psychology and
bonding. He conducted a bonding evaluation between Maisie and all
three children. He found their interaction to be "very consistent
with what is commonly seen between three children and a healthy
attachment figure." The children used Maisie as a secure base for
engaging in exploratory behavior. "Smiling and laughter were
plentiful." Maisie was very proactive, "praised the children very
appropriately and the children appeared to . . . respond
appropriately to the praise." They sought her assistance in their
play and she provided appropriate assistance and structure. Dr.
19 A-4577-15T2
Singer interviewed Nick and Adam, who both stated they wanted to
live with Maisie and that they were not having any visits with
their biological parents. Dr. Singer concluded:
[Maisie] has become the psychological parent
for all three children. The data suggests
that they have a very secure attachment. And
should that relationship be severed there
would likely be some significant negative
consequences to severing a relationship
between the children and their psychological
parent.
Dr. Singer noted the children enjoyed an added benefit by the
fact that all three children were together, giving them "an
opportunity to foster a relationship amongst themselves." He
opined it would be a "significant loss" for Adam to lose those
relationships.
Dr. Singer anticipated that if their relationship with Maisie
were severed, "the children would regress both emotionally and
behaviorally." He expected the "children would experience
feelings of loss, feelings of sadness, low self-esteem" and "have
difficulty forming meaningful attachments later in life." The
harm caused would be significant and enduring. This would be even
"more complicated" for Adam because he had some behavioral issues,
was exposed to lead, had some speech issues and had an Individual
Education Program (IEP) in school. Dr. Singer opined "that any
of those deficits . . . would be exacerbated should this child
20 A-4577-15T2
lose his relationship with . . . what appears to be his only
consistent healthy caregiver."
Because Eric never appeared for any of his scheduled
evaluations, Dr. Singer never met him. Dr. Singer stated Eric's
failure to make any of the appointments "raises concerns regarding
his ability to make the kind of commitment that [Adam] would need
in terms of having a safe, stable, healthy parental figure in his
life."
Dr. Singer opined a failed reunification would "add to the
inconsistency" the three children had experienced in their lives.
He noted the extreme importance of permanency in providing the
kind of consistency children need to grow, benefiting them in
developing self-esteem and even improving academic performance.
He stated the Division should not delay further in establishing a
permanent plan for the children and agreed with the Division's
goal of termination of parental rights and adoption of the children
by Maisie.
Moulton testified the Division did not refer Eric to any
services other than visitation and the psychological evaluation
21 A-4577-15T2
because, without experts' recommendations, the Division was
unaware of what services were needed.7
II.
Termination of parental rights is warranted when the Division
establishes by clear and convincing evidence that:
(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 his
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.
[N.J.S.A. 30:4C-15.1(a) See N.J. Div. of Youth
& Family Servs. v. I.S., 202 N.J. 145, 168
(2010).]
7
Moulton acknowledged she was aware that Eric was employed in
construction and worked long hours. She had provided him with a
letter documenting his court cases for his employer as he had
requested.
22 A-4577-15T2
These "four criteria . . . are not discrete and separate; they
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). Notably, the
best interests standard is applied in light of "New Jersey’s strong
public policy in favor of permanency." Id. at 357. "[T]he child's
need for permanency and stability emerges as a central factor."
Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 26 (1992).
Eric argues the order terminating his parental rights should
be reversed because the Division failed to prove the four prongs
of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. We
disagree.
As a preliminary matter, we note that great deference is
afforded to the Family Part's findings of fact and conclusions of
law based on those findings. N.J. Div. of Youth & Family Servs.
v. E.P., 196 N.J. 88, 104 (2008); N.J. Div. of Youth & Family Servs.
v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 79 (2007). In this case, the findings
of fact are based upon the evidence presented by the Division,
which were unrefuted by any evidence presented on behalf of Eric
and, in fact, were corroborated by Eric's admissions at compliance
review hearings.
23 A-4577-15T2
III.
The first two prongs of the statutory test are interrelated.
A.
Harm, as addressed by the first prong, "involves the
endangerment of the child's health and development resulting from
the parental relationship." K.H.O., supra, 161 N.J. at 348. Eric
argues that this prong was unproven because he never harmed Adam
and he further faults the Division for failing to locate him and
using only "perfunctory efforts" to do so.
To satisfy this prong, the Division "does not have to wait
'until a child is actually irreparably impaired by parental
inattention or neglect.'" N.J. Div. of Youth & Family Servs. v.
F.M., 211 N.J. 420, 449 (2012) (quoting In re Guardianship of
D.M.H., 161 N.J. 365, 383 (1999)). "The harm shown . . . must be
one that threatens the child's health and will likely have
continuing deleterious effects on the child." K.H.O., supra, 161
N.J. at 352.
"[T]he attention and concern of a caring family is 'the most
precious of all resources.'" D.M.H., supra, 161 N.J. at 379
(quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591,
613 (1986)). "A parent's withdrawal of that solicitude, nurture,
and care for an extended period of time is in itself a harm that
24 A-4577-15T2
endangers the health and development of the child." Ibid.; see
also K.H.O., supra, 161 N.J. at 352-54.
The trial judge made the following findings as to the first
prong of the analysis:
[Eric] simply has been not available to
his child and, also, has no plan. The Court
finds he has, in fact, withheld his, love,
nurture and solicitude at a time period where
he knew or certainly should have known . . .
that the Division had custody . . . of his
child. The caseworker was clear that the
evidence the affidavit establishes that [Eric]
knew that the Division had removed [Adam].
[Eric] knew [Adam] was in trouble because of
the fact that [Adam's] mother didn't take him
to the doctor for two years and that, [Adam]
was either back with his mother in the first
instance and, then, removed. And [Eric]
currently had no plan and wasn't available.
In fact, he gave the Division incorrect
information, never updated his information
with the Division. And the Division did
everything they could to find him. They did
an affidavit search and it was unsuccessful.
And [Eric] despite the fact knowing that the
Division has his child never appeared and
never planned, clearly, his being unavailable
for his child, not planning for his child,
letting his child remain in foster care
without getting involved, not contacting the
Division, not being involved in any way, shape
or form is withholding love, nurture and
solicitude. A recognizable and cognizable
harm in New Jersey. And I find the Division
has established that clearly and convincingly.
. . . .
I, also, note . . . that a child may
experience continuous psychological damage if
25 A-4577-15T2
deprived of a permanent home and identity.
And, clearly, [Eric] failed to provide a
permanent type of home for [Adam], which is
further harm. And as indicated jeopardizes
and harms the child's health and development.
And I do find that not only [has Eric]
harmed the child's health and development, but
that it's likely to continue in the future and
continue to be endangered . . . . I'll go into
that a little bit more in Prong [three]. I
went into it a little bit before with the
facts. But, clearly . . . . [Eric] has been
simply unavailable and missed five attempts
to have him evaluated as well. Therefore, the
Division has satisfied Prong [one] clearly and
convincingly.
B.
Under the second statutory prong, "[n]o more and no less is
required of [the parents] than that they will not place their
children in substantial jeopardy to physical or mental health."
A.W., supra, 103 N.J. at 607. In other words, "[t]he Division must
demonstrate that the parent is 'unable to eliminate the harm facing
the child or is unable . . . to provide a safe and stable home for
the child' . . . before any delay in permanent placement becomes a
harm in and of itself." N.J. Div. of Youth & Family Servs. v.
A.G., 344 N.J. Super. 418, 434 (App. Div.) (alterations in original)
(quoting N.J.S.A. 30:4C-15.1(a)(2) and J.C., supra, 129 N.J. at
10), certif. denied, 171 N,J. 44 (2002).
Eric argues the trial judge erred in finding this prong
satisfied by his "failure to come forward." He submits that, "as
26 A-4577-15T2
soon as [he] was made aware and served the FG Complaint, he
appeared three days later at the January 14, 2016 court hearing
and expressed his interest in caring for his son again."
The trial judge found the Division satisfied the second prong
clearly and convincingly:
[Eric's] unwillingness to attend any type
of service speaks volumes of [his]
unwillingness to address the reasons why [Adam
is] not in [his] care.
[Eric] simply has never come forward.
He's avoided the Division by giving
information that either was incorrect or soon
became incorrect and never updated it. The
Division through a search could not even
locate him. And he's never sat down and met
the Division to establish a plan. The best
the Division could do was get him into an
evaluation to see what services he needed.
But, unfortunately, he never complied with
that. He was, basically, missing in action,
MIA, is what I put in my notes, at the removal
time, all the way up through January 2016.
And, then, when he appeared in 2016 he was
still noncompliant.
In addition, he had ample opportunity to
even attend visits with [Adam]. The testimony
was that even though the caregiver is not his
direct relative the caregiver was wil[l]ing
to have open and liberal visitation and
supervise it. But he never took advantage of
that. Then, the Division said, fine, they
will set the visits up at Tri-Cities. [Eric]
missed the intake. And, consequently, the
visits were, then, at the Division's office.
And he only attended two visits during that
whole time period. That clearly demonstrates
an inability or unwillingness to eliminate the
harm facing the child.
27 A-4577-15T2
C.
The record here supports the finding that Eric voluntarily
withdrew from Adam's life for substantial periods of time. He was
fully aware of the medical neglect Adam had suffered while in Ali's
care when he brought Adam to the pediatrician in April 2012. At
that time, Eric learned Adam had not been to the doctor in two
years, was behind in his immunizations, undernourished, half the
normal weight for a child his age, and his speech was delayed. He
also knew that Ali had frustrated his efforts to secure medical
attention for Adam by failing to provide his medical card. It is
evident Eric was capable of recognizing and caring for Adam's needs
because, during the time Adam lived with him, Eric followed up with
all his medical appointments and saw to it that Adam received
appropriate medical treatment, including getting him up to date
with his immunizations. A continuing theme in the Division's
reports is that there were no concerns for Adam's well-being when
he was living with Eric.
Nonetheless, when Ali had another child in June 2013 and
claimed Eric was the father, Eric returned Adam to the home where
he had been neglected in order to mollify Nell. There is no
evidence he did anything to ameliorate the risk of harm to Adam
that living with Ali posed.
28 A-4577-15T2
It is reasonable to infer Eric was aware Adam had been removed
from Ali's care in April 2014 because he was present at her house
when the Division caseworker appeared for an unannounced visit in
June 2014. Despite the urging of the caseworker to attend a Family
Team Meeting and her follow-up call to him, he did not attend,
proffering an as yet unsubstantiated excuse that his grandmother
was in the hospital. Although the caseworker provided her contact
information and emphasized the need for Eric to remain in contact
with the Division, he remained incommunicado from June 2015 until
January 2016, when the Division was able to contact him through his
grandmother.
Thus, from July 2013, the time he returned Adam to the care
of a person Eric knew had neglected him, until January 2016, the
only initiative Eric took to reach out to the Division was the
phone call he made after his grandmother contacted him to inform
him the Division was seeking him. It is no excuse that he did not
know about the FN litigation because he admitted to the judge he
did not get involved or see his son because of the friction between
Ali and Nell. He also admitted he knew where Adam was in placement
and had the telephone number for his resource mother but failed to
pursue visits with Adam when he called and got no answer.
It cannot be disputed that Eric was fully aware of the
guardianship trial as of January 2016. The guardianship action was
29 A-4577-15T2
close to one year old at that time and the judge was understandably
concerned that a trial be scheduled to achieve permanency for Adam.
Still, both the judge and the Division were admirably respectful
of Eric's rights. The Division reminded the judge that Eric had
just appeared, "presented himself as a plan" and had to be given
"an opportunity to engage in the litigation." When Eric stated his
interest in parenting Adam, the judge responded, "[g]ood," and
provided him with a road map of the litigation process.
From his initial appearance in January 2016 through trial,
the record is replete with evidence that the judge, the Division
and even Eric's own attorney repeatedly advised him of the
importance of appearing for scheduled evaluations, explained why
the evaluations were important in the litigation, confirmed he
knew where he had to appear and had the means to do so. He was
not prejudiced by his one excusable failure due to the fire.
Rather, he was given four more opportunities to attend, all
accompanied by urgent advice as to the importance of his
participation and the consequences for failing to appear.
As for the final opportunity, on the day of trial, the
caseworker had stressed the hearing was to address the termination
of parental rights and the judge had made it clear Eric would be
foreclosed from presenting his own expert if he failed to appear
for evaluation by Dr. Singer. Admittedly, Eric had a potential
30 A-4577-15T2
conflict that day but, as the caseworker advised him, it was not
insurmountable and they could work it out, provided he showed up
as required for the 9:00 a.m. evaluation.
We derive two conclusions from this record. First, Adam was
exposed to a risk of harm from his relationship with his father.
That harm was presented by Eric's voluntary withdrawal from Adam's
life and responsibilities for his care after Eric knowingly
permitted Adam to return to a home where he had been profoundly
neglected. Second, we conclude Eric lacks the ability or
inclination to overcome this inattention and become a responsible
parent to Adam. We are cognizant Eric suffered the loss of a fire
and has significant other responsibilities associated with the
family he has with Nell. But Adam deserves a parent who puts his
needs on a footing that is at least equal to the demands placed
on Eric by these other family relationships. Even if we accord
any credence to Eric's stated but unsubstantiated reasons for
failing to attend evaluations and visits with Adam, those reasons
reveal the very low priority Eric gave to building or even merely
staving off the termination of his parental relationship with his
son. In our view, there was ample evidence to satisfy the first
and second prongs of the best interests test.
IV.
31 A-4577-15T2
The third prong of the best interests standard contemplates
the Division's efforts to reunify the parent and the child by
assisting the parent in addressing the problems that led to
placement. K.H.O., supra, 161 N.J. at 354. Such efforts include:
(1) consultation and cooperation with the
parent in developing a plan for
appropriate services;
(2) providing services that have been agreed
upon, to the family, in order to further
the goal of family reunification;
(3) informing the parent at appropriate
intervals of the child's progress,
development, and health; and
(4) facilitating appropriate visitation.
[N.J.S.A. 30:4C-15.1(c).]
The Division's efforts are measured not by their success but
against the standards of adequacy in light of the family's needs
in a particular case. D.M.H., supra, 161 N.J. at 390. When a
parent "refuse[s] to engage in therapy or other services," that
factor suggests efforts to reunite the family are no longer
reasonable. A.W., supra, 103 N.J. at 610 (quoting Richard Ducote,
Why States Don't Terminate Parental Rights, Justice for Children
3 (Winter 1986)).
The trial judge found the Division proved the third prong by
clear and convincing evidence:
32 A-4577-15T2
[D]espite the fact that [Eric] knew based
on the testimony of the caseworker and the
affidavit of the fact that his child was in
custody [he] did not make himself available.
And, consequently, was unavailable for any
type of service. When he did make himself
available in January of 2016 he was
immediately referred to an evaluation, again,
so services could be put in place and tailored
for him. Unfortunately, he had five attempts
at those evaluations and never -- never made
it, never attended. And, of course, as I
indicated there were two searches for him as
well.
. . . .
As far as alternatives, the Division has
considered a relative, [S.K.] and the
Division, also, spoke to the caregiver about
[kinship legal guardianship] as an alternative
to adoption. The caregiver expressed [that
her] desire and preference is for adoption.
Eric argues that the trial judge erred in making this finding.
He contends the Division "failed to tailor its services to the
father," stating, "[a]s soon as he was served and understood that
his son was in foster care . . . he availed himself by attending
court hearings and being tested for paternity." He also argued
that the Division conducted an inadequate search for relatives for
Adam's placement and criticized the foster mother as an
inappropriate placement.
Regarding the court-ordered evaluations, Eric did not argue
before the trial court or in this appeal that the evaluations
ordered by the trial judge were unnecessary; that it was
33 A-4577-15T2
unreasonable for the judge to require them or that the requirement
interfered with his ability to parent Adam. Rather than challenge
the reasonableness of the ordered evaluation, Eric argued his
noncompliance was excusable.
As Moulton testified, Eric's failures to participate in the
psychological evaluations thwarted any effort by the Division to
determine what services were appropriate to assist in
reunification. Even without the evaluations, the Division was
able to respond to Eric's needs when he maintained contact,
providing a bed for Adam, a list of resources to deal with the
loss caused by the fire and bus cards to enable him to attend
evaluations.
Eric's argument that the Division failed to adequately
consider alternatives to termination lacks any merit. The Division
initially placed the children with a maternal cousin, who asked
they be removed four months later. At that time, Eric's
whereabouts were unknown and the children were placed with another
resource suggested by Ali. Eric now contends the Division was
required to conduct an exhaustive search for a relative who could
care for Adam and states the Division should have considered Eric's
mother because it had her contact information. We do not agree
that the Division has such an obligation. We note further that
34 A-4577-15T2
there is no evidence that Eric suggested her as a placement or
that she volunteered for placement.
V.
Lastly, the fourth prong addresses whether "[t]ermination of
parental rights will not do more harm than good." N.J.S.A. 30:4C-
15.1(a)(4). The focus of this prong is whether the child will
suffer a greater harm from the termination of ties with the natural
parent than from the permanent disruption of the child's
relationship with the foster parent. K.H.O., supra, 161 N.J. at
355.
Eric argues it was error for the trial judge to find this
prong satisfied because Adam "knows his father," spent one-third
of his life with his father and is "comfortable and excited" to
be with his father and his family.
The trial judge found this prong was satisfied by clear and
convincing evidence, as well. Although the judge observed
comparative bonding evaluations were not available because Eric
had failed to attend any bonding evaluation, the court did have
"the uncontradicted testimony of Dr. Singer," who had interviewed
Adam and conducted a bonding evaluation with Maisie.
[Dr. Singer] noted that there was a
secure attachment. He noted that the children
view her as the psychological parent. He
noted that there would be harm if that
relationship was terminated. There would be
35 A-4577-15T2
enduring harm. The children would regress.
[Adam's] special needs . . . would be
enhanced. And in the long term there would
be experience of loss, sadness and low self
esteem.
There is no known parent who can at this
point mitigate that harm.
Dr. Singer, after reviewing all of the
facts before him and the data concluded that
the children need permanency and that they
would benefit from permanency. And that
further delay would not be in the children's
best interest.
He, also, noted in his report that the
children are progressing through the age where
primary attachments internalize and where
there is no other attachment figure to
mitigate the harm if the children lose their
relationship with their psychological parent.
That there would be significant and enduring
harm suffered to the children.
Again, resulting in feelings of loss,
insecurity, low self esteem, and having
difficulty forming meaningful relations later
in life.
On the other hand, the children have an
opportunity here to be together with each
other and to achieve permanency. There is no
other vehicle or avenue for these children to
achieve permanency at this point in time. The
good from that permanency clearly outweighs
any harm that could result from the
termination of . . . [Eric's] rights to
[Adam]. . . .
The unrefuted evidence here is that Adam has an emotional
attachment to Maisie, who wants to adopt him and his siblings, and
he wants to continue to live with her. The emotional bond and the
36 A-4577-15T2
quality of care provided by Maisie have resulted in her becoming
Adam's psychological parent, the only healthy caregiver he has
known in his life. Dr. Singer testified Adam would suffer a
significant and long-term harm if that relationship were severed,
and, because of his special needs, the impact on him would be
greater than that on his siblings. No evidence was presented to
suggest Eric, an inconsistent presence in Adam's life, has any
ability to ameliorate the harm Adam would suffer.
"We will not disturb the family court's decision to terminate
parental rights when there is substantial credible evidence in the
record to support the court's findings." E.P., supra, 196 N.J.
at 104 (citing In re Guardianship of J.N.H., 172 N.J. 440, 472
(2002)). There is ample evidence here to support the court's
findings.
VI.
Our dissenting colleague concludes that termination is not
warranted here because Eric was not afforded a meaningful
opportunity to reunify with his son. He cites: failures in service
regarding the Title 9 and guardianship complaints, Eric being
precluded from visits unless supervised and the court's
requirement that he undergo a psychological evaluation, which our
colleague describes as neither necessary for reunification nor
helpful in determining Eric's ability to care for his son.
37 A-4577-15T2
We agree that courts should not adopt recommendations of the
Division for evaluations in a knee-jerk fashion without
consideration of their usefulness in a given case. In this case,
however, the need for Eric to attend an evaluation was never
challenged in the trial court or on appeal. To the contrary,
trial counsel repeatedly represented to the court that she had
emphasized the importance of attending the evaluation to Eric,
even commenting on one occasion that she had been "very stern"
with him and he understood the importance of compliance. On
appeal, again, there has been no challenge to the reasonableness
of this requirement, only an argument that Eric's failure to comply
was excusable. And, Eric's failure to cooperate deprived the
court of a bonding evaluation between him and Adam, an evaluation
our colleague agrees is necessary.
Whether the ordered evaluations or supervised visitation were
necessary or not, we disagree that the orders deprived Eric of a
meaningful opportunity for reunification or thwarted any effort
of his to fortify his relationship with his son. The record
reflects an admirable patience on the part of the trial judge,
repeatedly expressing a commitment to assist Eric in visiting with
his son.
Both Eric and our dissenting colleague fault the Division for
failing to find Eric and include him in the ongoing litigation.
38 A-4577-15T2
In this, as in providing services generally, we believe the
Division's efforts should not be measured by their success but by
their reasonableness. The affidavit of inquiry filed in January
2015 shows the Division attempted to find Eric at his last known
address, conducted numerous inquiries of databases, identified
four other addresses for him and sent mail, both regular and
certified, that was returned as undeliverable and marked "[r]eturn
to sender, attempted – not known, unable to forward." A caseworker
also visited addresses in an effort to locate defendant and was
finally able to make contact after Eric heard from his grandmother
that she was looking for him.
Eric's own statements and conduct cannot be ignored in
assessing the reasonableness of the Division's efforts and whether
the orders thwarted reunification. Eric stated, under oath, that
he knew Adam was in placement, he knew where he was living and had
the telephone number where he could call him. Still, he did not
attempt to visit Adam during that extended time when there were
no orders in place. Given his admitted knowledge that his son was
in placement and the absence of any barriers to his visiting him
during that time, the limited nature of Eric's relationship with
his son cannot be laid at the Division's door.
We appreciate that, among the many failures to attend
evaluations and intake appointments, there was a fire precluding
39 A-4577-15T2
Eric's participation on one occasion and reasons given on other
occasions that appeared plausible. But, there were also excuses
that were conflicting, undocumented and strained credulity. And,
even if given credence, the excuses given did not reflect a high
priority for achieving reunification. The record thus provides
more than ample support for the conclusion that Eric's absence
from Adam's life was voluntary, not the product of any inhibiting
effect caused by the court's orders and further, that Eric's
absence constituted a harm he was unable or unwilling to eliminate.
Our colleague also states I.S. compels a different result.8
We disagree. Supra, 202 N.J. at 145.
C.M., the father in I.S., learned in December 2006 that he
had fathered a child out of wedlock, who was born eight months
earlier and had been removed from the care of the mother. Id. at
155. C.M. was married with four children. Ibid. The ensuing
conflict with his wife presented C.M. with what the Supreme Court
termed a Hobson's Choice, choosing between his newborn son and his
established family. Id. at 151. Although C.M. did not request
custody of his son because his wife would not accept that outcome,
he identified two placements for the child, a friend in the
Dominican Republic and his sister. Id. at 157-58. The Division
8
Eric did not cite I.S. in support of his arguments on appeal.
40 A-4577-15T2
rejected the possible placement in the Dominican Republic and
offered no assistance to C.M.'s sister to improve her housing
circumstances to accommodate the child. Ibid.This lack of responsiveness to C.M.'s predicament was echoed
in the trial court's colloquies with him, which can be
characterized as accusatory and judgmental in nature. When C.M.
said he wanted his son to live with his sister, the judge suggested
he should walk away from his marriage to care for the baby, making
statements such as: "Why don't you kick your wife out and take
your son home? This is your son, you made the baby, you be
responsible for him"; "Take the baby, you made the baby and have
your wife leave." Id. at 159. When C.M. answered that he had
more children with his wife, the judge asked, "Why did you have
another child with" the child's mother and, in response to C.M.'s
statement that "accidents" happen, the judge stated, "[accidents]
shouldn’t happen." Ibid. (alteration in original). The trial
judge rejected the need for a bonding evaluation or psychological
evaluation, in apparent agreement with the Division's stated goal
in the guardianship trial: "adoption, not custody transfer, not
anything, it's adoption." Id. at 160.
The efforts of the Division and the trial judge to engage
Eric in the process stand in sharp contrast to the scenario in
41 A-4577-15T2
I.S. But, an even more important distinction lies in the
difference between the efforts made by C.M. and Eric.
C.M. was told by the Division that, to obtain custody of his
son, he would have to secure a two-bedroom apartment. Ibid. He
did so. Ibid. He was also told he had to secure someone to care
for the child while he was at work. Ibid. He identified a person
he trusted who had a license to take care of children. Ibid. He
also stated he would allow his son's relationship with his foster
parents to continue in appreciation for what they had done. Ibid.When asked how committed he was to care for his son, he responded,
"[a] hundred percent." Ibid.In short, C.M. took affirmative steps to satisfy any condition
the Division set for him. Sadly, the same cannot be said for
Eric.
Affirmed.
42 A-4577-15T2
____________________________________
GUADAGNO, J.A.D., dissenting.
Distilled to its essence, the majority opinion affirms the
termination of parental rights of an admittedly fit parent, who
was not considered for placement when his son, Adam, was removed
from his mother's custody; was never served with the Title 9
complaint in that matter; was not served with the subsequent
guardianship complaint for over one year; was not permitted to see
Adam unless his visits were supervised; and was ordered to submit
to a psychological evaluation that was neither necessary for
reunification nor helpful in determining his ability to care for
his son. Because the Division failed to prove the four prongs of
the best interest test, N.J.S.A. 30:4C-15.1(a), I respectfully
dissent from the decision affirming the termination of the father's
parental rights.
The mistakes that have plagued this case began during the
Title 9 proceedings. The Division became involved with this family
in April 2012, after the father, Eric, took Adam to the child's
pediatrician, Dr. Sundaram, with a severe case of eczema. The
doctor was concerned, as he had not seen Adam in two years and
contacted the Division because the child was underweight and had
not received timely vaccinations.
1 A-4577-15T2
Adam had just started living with Eric in March 2012. It is
not disputed that the child was well cared for while in Eric's
custody between March 2012 and July 2013, and that Eric fully
addressed the medical neglect the child suffered while in his
mother's care. A follow-up interview with Dr. Sundaram in November
2012 indicated that Adam was seen in October 2012 and was up-to-
date with immunizations with no recurring illnesses. The doctor
told the caseworker that Eric provides "adequate and appropriate
care" and he had no concerns of abuse or neglect.
Adam returned to live with his mother, Ali, in July 2013,
after Eric's fiancée, Nell, learned that Ali had accused Eric of
fathering another child with her. The Division filed for care and
supervision of Adam and two of Ali's other children in December
2013, because Ali had not addressed her marijuana use. Although
Eric was named in the order to show cause as a dispositional
defendant, he was not served with the complaint and did not appear.
A compliance review was held on April 9, 2014. As with the
four preceding court appearances, Eric was not noticed and did not
appear. Yet without any reason or apparent justification,1 the FN
1
The transcripts from the Title 9 litigation have not been
provided to us and we have only the court orders to inform our
review.
2 A-4577-15T2
judge ordered that any visits Eric might have in the future with
his son would be limited to once a week and had to be supervised.
When the Division removed Adam from Ali's custody in April
2014, he was placed with Ali’s cousin, S.K. There is no indication
in the record that any effort was made to contact Eric, let alone
place the child with him. The majority excuses this failure by
claiming Eric's whereabouts were unknown at the time. Ante at __
(slip op. at 5). However, Division records from 2012 contain two
addresses where Eric was living: a Vermont Avenue address in
Irvington, and a Schuyler Terrace address in East Orange.
A caseworker visited the Irvington address on September 5,
2012, when Adam was still residing with Eric. The caseworker
described the Irvington address as a three-bedroom apartment, and
reported that Eric was working as a self-employed carpenter earning
$400 per week, Adam and his step-siblings had shoes and clean
clothes with adequate food, and "the home [was] neat and clean,
and there [were] no concerns."
A Division report dated April 9, 2012, lists an additional
address for Eric at Schuyler Terrace in East Orange, but the
January 8, 2015 affidavit of inquiry does not indicate that any
letters were sent to that address. Not until January 2016 did a
caseworker send a "search letter" to Eric at the Schuyler Terrace
address. Eric immediately responded and informed the caseworker
3 A-4577-15T2
that Schuyler Terrace was his "permanent address." The Schuyler
Terrace address appears nowhere in the affidavit of inquiry, even
though the Division had a record of it as one of Eric's residences
as early as 2012.
The majority suggests the Division's efforts to locate Eric,
as evidenced by the caseworker's affidavit of inquiry, should not
be measured by their success but by their reasonableness. Ante at
__ (slip op. at 40). The record demonstrates that the Division's
efforts were neither successful nor reasonable as the Division had
Eric's address in its files since 2012. The Division alone must
bear the responsibility for the failure to notice and serve Eric.
When Adam was removed in April 2014, Eric had demonstrated
that he had capably parented his son for over one year, he had
been employed as a carpenter, had adequate housing, suffered no
substance abuse issues, and had no history of any psychological
impediments. Eric should have been the first option for the
placement of Adam, yet the Division made no efforts apparent in
the record to find him.
When a caseworker encountered Eric purely by accident on June
18, 2014, he failed to obtain Eric's address, did not serve him
with a copy of the Title 9 complaint, and did not advise him of
his right to have counsel appointed. The Division does not dispute
that Eric was never served with the Title 9 complaint.
4 A-4577-15T2
The guardianship complaint was filed on February 19, 2015.
The first court appearance occurred on March 26, 2015. The FG
judge entered an order indicating incorrectly that Eric had
received notice of the proceeding, while another portion of the
order indicates the Division had not yet served any of the named
fathers. The transcript confirms that the caseworker told the
judge the Division was still trying to "find" Eric.
On January 11, 2016, Eric learned the Division was attempting
to terminate his parental rights, not from the Division, but from
his grandmother, who had been contacted by caseworker Moulton.
Eric immediately called Moulton and met with her later that day.
Eric was advised of the next court date, January 14, 2016, which
he attended with counsel.
Eric told the judge that he had housing, was currently caring
for six children, was beginning a new construction job, and wished
to be considered as a placement for Adam. Without any explanation,
the deputy attorney general (DAG) informed the judge that the
Division had already scheduled psychological evaluations for Eric
and his fiancée. The only justification presented by the DAG for
the evaluation was that Eric "has not been involved in this
litigation." The judge indicated that Eric would be given
visitation, but there was no discussion on the record as to the
type of visitation, the duration, or frequency.
5 A-4577-15T2
In February 2016, Eric's home was destroyed by fire. This
and a host of other reasons, including the unavailability of the
psychologist,2 a lack of transportation, a sick child who was
hospitalized, and his employment, kept Eric from attending the
psychological evaluation. As often happens, the tail of this so-
called "service" began to wag the dog of reunification, and Eric
was not permitted any meaningful time with his son until this
unnecessary psychological evaluation was completed.
The majority agrees that courts should not adopt
recommendations of the Division for services in a knee-jerk fashion
without consideration of their usefulness, but argues that
ordering a completely unnecessary psychological evaluation was
somehow acceptable because defendant did not object. Ante at __
(slip op. at 38). I disagree. Judges have an independent
obligation to determine whether a service is necessary before
ordering it. See N.J. Div. of Youth & Family Servs. v. I.S., 202
N.J. 145, 178 (2008) (criticizing parenting classes ordered for a
man who had successfully raised four children as "utterly
2
When the FG judge was told the psychologist could not see Eric
for two months, he remarked the doctor's unavailability was
delaying trials and having a negative effect on permanency:
"That's unacceptable. I don't know how many cases he's taking or
how many cases he's doing with the Division. But he's . . .
[a]ffecting permanency in a docket type where the legislation has
required three months for FG trials."
6 A-4577-15T2
irrelevant"). This obligation exists whether or not a party
objects.
In addition, Dr. Singer, who never met Eric, nevertheless was
permitted to testify at trial that Eric's failure to attend an
evaluation with him "raises concerns regarding his ability to make
the kind of commitment that [Adam] would need in terms of having
a safe, stable, healthy parental figure in his life." The judge
concluded that because Eric failed to attend the psychological
evaluation "the Division was not able to refer him for services
because they didn't know what services he needed." The judge
never acknowledged that Eric had successfully parented his son
without incident for over one year. Had the judge considered
this, he may have reasonably concluded that Eric was not in need
of any services. The judge's conclusion suggests that all parties
who appear in Title 9 and 30 litigation are in need of services,
and the Division is incapable of recommending these services
without the guidance of a psychological evaluation. Eric was
named in the Title 9 complaint as a dispositional defendant and
there were never any allegations of abuse or neglect against him.
When Eric appeared in the guardianship litigation, there was no
indication he was in need of any services and the DAG's claim that
he "has not been involved in this litigation" did not warrant a
psychological evaluation.
7 A-4577-15T2
Dr. Singer followed his assessment in absentia of Eric by an
equally bizarre and totally inadmissible bonding conclusion. Dr.
Singer opined hypothetically that if Adam was bonded to Eric, as
Adam is with his foster parent, "losing one relationship while
maintaining the other relationship would likely serve to mitigate
the harm."
The judge adopted this conclusion, finding:
if [Adam's bond with Eric] was as strong as
the caregiver's bond that one could mitigate
the other. In other words, that assuming
there was a bond . . . the caregiver would be
able to mitigate that harm from the
termination of the biological rights of the
parents.
The objections to Dr. Singer's testimony should have been
sustained, and his opinion, which is based on his unilateral
finding that Adam enjoyed a strong bond with his foster parent,
is insufficient to support the judge's conclusion that the Division
presented clear and convincing proof under the fourth prong.
In N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super.
418, 439 (App. Div. 2009), we held that "the fact that the child
has a strong relationship with the foster parents is not by itself
enough to terminate parental rights." A.R. also involved a bonding
evaluation coincidentally performed by the same Dr. Singer on
behalf of the Division where only the child and foster parents
were evaluated. Id. at 429-30. When asked at trial if the child
8 A-4577-15T2
would experience harm if the court severed his relationship with
his foster parents, Dr. Singer responded "that the child would
experience both significant and enduring harm." Id. at 430.
Because his foster parents "are his central parental figures," Dr.
Singer testified that the child "would experience a lot of
emotional and behavioral regression in the short term and a feeling
of insecurity, a feeling of low self-esteem, feelings of sadness
in the long term." Id. at 430-31.
In affirming the trial court judgment denying the termination
of the mother's parental rights, we noted "the child's relationship
with foster parents 'must be viewed not in isolation but in a
broader context that includes . . . the quality of the child's
relationship with his or her natural parents.'" Id. at 439 (quoting
Matter of Guardianship of J.C., 129 N.J. 1, 18 (1992)).
If the unnecessary psychological evaluation did not present
enough of a hurdle to Eric's reunification, the FG judge also
ordered that Eric's visits with his son had to be supervised.
Again, no explanation or justification was offered by the Division
or found by the judge for this needless restriction to a parent
who had already demonstrated to the Division that his parenting
of Adam raised "no concerns."
In I.S., supra, 202 N.J. at 176, the Court provided a detailed
guide to the "diligent efforts" the Division was required to make
9 A-4577-15T2
in assisting parents in remedying the circumstances and conditions
that led to the placement of the child and in reinforcing the
family structure.
The similarities of the facts in I.S. to those here are
striking, particularly the Division's insistence and the FN and
FG judges' unexplained and unjustified concurrence that Eric's
visitation be supervised. As the I.S. Court explained:
The standard for whether visits should be
supervised is also set forth in DYFS's own
regulations. They unequivocally provide that
"[u]nless [DYFS] or the Superior Court,
Chancery Division, Family Part finds a need
for supervision, visits shall be
unsupervised." N.J.A.C. 10:122D-1.10(b). The
regulations also require that "[i]f visits
will be supervised, the plan shall contain a
statement of the reason supervision is
required." N.J.A.C. 10:122D-1.10(c).
[I.S., supra, 202 N.J. at 179.]
As in I.S., there is no apparent reason in the record before
us to justify the FN judge's decision to restrict Eric's visits
with his son.3 Similarly, the FG judge compounded this mistake by
simply accepting the Division's recommendation for supervised
visits without making any of the required findings. Too many
cases involving knee-jerk requests by the Division for unnecessary
3
The FN orders contain no justification or explanation for
supervised visits and, as previously mentioned, the Title 9
transcripts were not included in the record on appeal.
10 A-4577-15T2
services, particularly psychological evaluations, followed by
rubber-stamping of these requests by the courts without
questioning the actual need for these services, convince me that
the Court's direction in I.S. has fallen on deaf ears.
Like the defendant in I.S., Eric had children with two
different women. The defendant in I.S. failed to offer himself
as a resource to his son, who was conceived out of wedlock, when
he initially chose to remain with his wife. Id. at 182-83. Here,
Eric returned Adam to Ali at his fiancée's insistence, after Ali
falsely accused Eric of fathering her latest offspring. The
majority employs unnecessary hyperbole in accusing Eric of
permitting "Adam to return to a home where he had been profoundly
neglected." Ante at __ (slip op. at 31). In fact, Adam was
undernourished in Ali's care and she failed to provide the child
with timely immunizations. The Division did not consider these
issues "profound" enough to remove Adam, who remained with Ali for
over one year while under the Division's care and supervision.
Ultimately, Adam was removed because Ali refused to stop smoking
marijuana. Again, I.S. comes to mind:
Because defendant somehow made the "wrong"
choice, he was to be denied his child, a child
defendant appears more than capable, willing
and able to rear. That result runs contrary
to the entire legislative and jurisprudential
scheme developed to handle this most sensitive
11 A-4577-15T2
of topics: the termination of a parent's
rights to his or her natural child.
[I.S., supra, 202 N.J. at 182-83.]
Eric made his first appearance in the FG proceeding after he
was served with the guardianship complaint more than one year
after it was filed. By this time, the FG judge was anxious to try
this case as the three-month statutory mandate for trial had been
exceeded. See N.J.S.A. 30:4C-15.2 ("A final hearing for
guardianship shall be held within three months from the date the
petition is filed with the Family Part.").
Although Eric had no history of any psychological issues and
nothing in the record indicated the need for a psychological
evaluation, the Division requested, and the FG judge ordered Eric
to attend such an evaluation. Not only was this evaluation
completely unnecessary, it needlessly delayed any chance Eric had
to reunify with Adam.
To be clear, I do not question the need for bonding
evaluations after a guardianship complaint has been filed. As the
Court previously held:
[T]o satisfy the fourth prong, the State
should offer 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
both the natural parents and the foster
parents.
12 A-4577-15T2
[N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J. 420, 453 (2012) (quoting N.J. Div.
of Youth & Family Servs. v. M.M., 189 N.J.
261, 281 (2007)).]
Nor do I oppose ordering a psychological evaluation during
an FN or FG proceeding when there has been some showing that a
parent has manifested any psychological disorder. But as this
case clearly demonstrates, the perfunctory ordering of needless
psychological evaluations where there has been no such showing
serves only to delay the reunification or termination proceeding
without any perceptible benefit.4
When a child is removed, our statutory scheme recognizes that
time is of the essence and reunification efforts must proceed with
dispatch to avoid further trauma to the child. Much like the
irrelevant services ordered in I.S., supra, 202 N.J. at 178, this
unnecessary psychological evaluation needlessly delayed and
ultimately prevented Eric's reunification with no discernible
benefit.
The Division appears to have no guidelines to inform when a
psychological evaluation should be ordered, and our judges appear
to routinely grant these requests without considering their
necessity or the delay they inevitably cause to the reunification
4
The Division should be able to recommend routine services such
as parenting classes, without the questionable benefit of insight
gained from these evaluations.
13 A-4577-15T2
process, as well as the hardship they may impose on parties who
may lack transportation or have to take time off from work. When
a service is recommended by the Division, our judges have the
responsibility to carefully scrutinize its necessity and not
blindly and indiscriminately include the service in a court order.
In finding that the Division had established the first prong
of the best interests test, the trial judge appeared to blame Eric
for "letting his child remain in foster care without getting
involved, not contacting the Division, not being involved in any
way, shape or form, [which] is withholding love, nurture and
solicitude. A recognizable and cognizable harm in New Jersey."
Although Eric provided a cell phone number to a caseworker
that was apparently later disconnected, the judge found that "he
gave the Division incorrect information." This conclusion finds
no support in the record. Even though the Division had searched
for Eric unsuccessfully, when a caseworker spoke with him on June
18, 2014, she inexplicably failed to obtain his current address
and never served him with the Title 9 complaint. Caseworker
Moulton testified at trial:
Q: Eventually, the Division did make
contact with [Eric]?
A: Yes.
Q: They saw him at [Ali]'s house on
June 18th, 2014?
14 A-4577-15T2
A: Yes. Yes, 2014.
Q: Okay. And the Division got contact
information from him?
A: Yes.
Q: A telephone number?
A: Telephone number.
Q: That was later disconnected - -
A: Yes.
Q: - - when they tried to reach it?
A: Yes.
Q: But did they get an address from him at
that time?
A: Not to my knowledge.
N.J.S.A. 9:6-8.41 provides:
No hearing may commence under this act unless
the court enters a finding:
a. That the parent or guardian is
present at the hearing or has been served
with a copy of the complaint; or
b. If the parent or guardian is not
present, that every reasonable effort has
been made to effect service under
sections 18 and 19 hereof.
It was never incumbent on Eric to come forward as the FG
judge and the majority suggest; it was the Division's obligation
to serve him with the complaint and advise him of his right to
15 A-4577-15T2
counsel. The Division failed in this regard and the trial judge
failed to ensure that Eric was "keenly aware" of these proceedings
and of his right to counsel. N.J. Div. of Youth & Family Servs.
v. N.S., 412 N.J. Super. 593, 632 (App. Div. 2010).
When the Division removed Adam from Ali's custody, it had an
obligation mandated by our constitution to make every effort to
place the child with his biological father who had previously
demonstrated that he was a fit parent. See J.C., supra, 129 N.J.
at 7-8 ("The law clearly favors keeping children with their natural
parents and resolving care and custody problems within the
family."). From the record before us, they made no effort to do
so, even though an address Eric described as his permanent
residence was in the Division file. When Eric learned the Division
was moving to terminate his parental rights he appeared at the
next court hearing and expressed a desire to parent his son. The
Division then requested, and the judge imposed the needless
impediments of a psychological evaluation and supervised
visitation, which frustrated Eric's ability to reunite with his
son.
Because I am unable to agree that Eric, who caused no harm
to his son, should suffer the termination of his parental rights,
I respectfully dissent.
16 A-4577-15T2