DCPP VS. A.S.K. AND T.T. AND E.M.C. IN THE MATTER OF THE GUARDIANSHIP OF N.D.K., A.E.C. AND E.S.K.(FG-07-197-15, ESSEX COUNTY AND STATEWIDE)

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NOT FOR PUBLICATION WITHOUT THE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-4577-15T2
NEW JERSEY DIVISION
OF CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
A.S.K., and T.T.,
Defendants,
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-07-197-15.
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.
1
We use initials and pseudonyms to protect the privacy of the
parties and minor child.
2 A-4577-15T2
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
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
3 A-4577-15T2
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
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), is "always" outside,
unsupervised, and eats 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
4 A-4577-15T2
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).
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
5 A-4577-15T2
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.
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
2
No documentation was ever provided to corroborate this
statement.
6 A-4577-15T2
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
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 now, 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.
3
He also requested a paternity test regarding Eddie, which showed
he was not the father of that child.
7 A-4577-15T2
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
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.
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.
8 A-4577-15T2
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
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, "Yes," the
judge replied, "Good." The judge ascertained the caseworker had
been to Eric's residence and then said to the DAG, "And, 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?
9 A-4577-15T2
[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.
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.
10 A-4577-15T2
[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?
[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.
11 A-4577-15T2
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
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, "So 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:
12 A-4577-15T2
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
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:
13 A-4577-15T2
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
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
14 A-4577-15T2
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 voice mail.
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
raise his son. And he understands the seriousness of the
litigation and he – 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
5
Nell also missed each of the scheduled evaluations.
15 A-4577-15T2
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
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.
6
On April 18, the representation had been that one daughter was
ill.
16 A-4577-15T2
The trial judge agreed to schedule 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 a 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, "He'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'
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, "Yes." The judge 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.
17 A-4577-15T2
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.
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
18 A-4577-15T2
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.
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 31st 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
19 A-4577-15T2
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.
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
20 A-4577-15T2
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
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
21 A-4577-15T2
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
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
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
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); N.J. Div. of Youth &
Family Servs. v. I.S., 202 N.J. 145, 168
(2010).]
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
23 A-4577-15T2
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, 278-79 (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, corroborated by Eric's admissions at
compliance review hearings.
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
24 A-4577-15T2
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
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
25 A-4577-15T2
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
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 3. 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 1 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
26 A-4577-15T2
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. 2001), certif. denied,
171 N.J. 44 (2002) (quoting N.J.S.A. 30:4C-15.1(a)(2)).
Eric argues the trial judge erred in finding this prong
satisfied by his "failure to come forward." He submits that, "as
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
27 A-4577-15T2
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.
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
28 A-4577-15T2
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.
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
29 A-4577-15T2
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
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, "Good," 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
30 A-4577-15T2
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
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
31 A-4577-15T2
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.
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
32 A-4577-15T2
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:
[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
33 A-4577-15T2
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
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
34 A-4577-15T2
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
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
354-55.
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
35 A-4577-15T2
"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
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
36 A-4577-15T2
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
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; see also 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
37 A-4577-15T2
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.
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
38 A-4577-15T2
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.
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 "Return
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
39 A-4577-15T2
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
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 N.J. Div. of Youth & Family Servs.
v. I.S., 202 N.J. 145 (2010) compels a different result.8 We
disagree.
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
154-44. C.M. was married with four children. The ensuing conflict
8
Eric did not cite I.S. in support of his arguments on appeal.
40 A-4577-15T2
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. 157-58. The Division
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
41 A-4577-15T2
evaluation, in apparent agreement with the Division's stated goal
in the guardianship trial: "adoption, not custody transfer, not
anything, it's adoption."
The efforts of the Division and the trial judge to engage
Eric in the process stand in sharp contrast to the scenario in
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. He did so.
Id. at 160. He was also told he had to secure someone to care for
the child while he was at work. 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
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
the FN 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 (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 are 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
3 A-4577-15T2
caseworker send a "search letter" to Eric at the Schuyler
Terrace address. Eric immediately responded and informed the
caseworker 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 (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
4 A-4577-15T2
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.
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
5 A-4577-15T2
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.
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
(slip op. at 38). I disagree. Judges have an independent
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
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
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
7 A-4577-15T2
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.
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.
8 A-4577-15T2
In New Jersey Division of Youth and Family Services 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 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)).
9 A-4577-15T2
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 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.]
10 A-4577-15T2
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 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 (slip op. at 31). In fact,
Adam was undernourished in Ali's care and she failed to provide
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.
11 A-4577-15T2
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
of topics: the termination of a parent's
rights to his or her natural child.
[Ibid.]
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
12 A-4577-15T2
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 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.
[N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J. 420, 453 (2012).]
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.
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
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 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 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
14 A-4577-15T2
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?
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:
15 A-4577-15T2
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
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
16 A-4577-15T2
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.
17 A-4577-15T2