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New Jersey Division of Child Protection and Permanency v. E.C.

Superior Court of New Jersey, Appellate Division

June 24, 2013

E.C., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF S.Y.C. and N.I.C., minors.


Submitted May 15, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-207-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Edward F. McGinty, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lindsay C. Wight, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for S.Y.C. and N.I.C., minors (Lisa M. Black, Designated Counsel, on the brief).

Before Judges Axelrad, Sapp-Peterson and Haas.


Defendant, E.C., appeals from the April 4, 2012 judgment of the Family Part, entered following a bench trial, terminating his parental rights to his two children: Sally, [1] born February 5, 2005, and Nick, born June 7, 2008. The children's mother, Rina, executed an identified surrender of her parental rights to the children prior to trial. Defendant contends the Division of Child Protection and Permanency (Division) violated his due process rights and otherwise failed to prove the four prongs of the termination statute by clear and convincing evidence. The Law Guardian supports the termination on appeal.

Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition overwhelmingly supports the termination of defendant's parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2009) (holding a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial credible evidence in the record as a whole). Accordingly, we affirm.

The guardianship trial was conducted over two non-consecutive days, February 7, 2012 and April 4, 2012. Defendant was represented by counsel for the entire trial. The Division presented its caseworker, Shannon Johnson, who had been assigned to the family's case since 2010. It also moved into evidence its records, which were marked P-1 through P-124. Defense counsel had no objection to any documents related to Nick and Sally, but argued records pertaining to the older children were not relevant. The Division also presented its expert, Dr. Eric Kirshcner, the psychologist who evaluated Sally and conducted bonding evaluations between Rina and the children, and between Nick and Sally and their foster mother. Defendant briefly appeared, telephonically, at the February 7 proceeding, until his phone card expired. On the second day of trial, he testified telephonically in his own defense.

Although the Division had been involved with the family since 2005, the events precipitating the Division's filing of a complaint for guardianship occurred in January 2009, shortly before defendant, who had been arrested and detained since July 2008, was deported to Haiti.[2] The Irvington police notified the Division that the basement apartment where Rina lived with Nick, Sally, and her two older children, [3] had been raided. They reported that during the raid, they found drugs and a handgun, to which both children had easy access. The Division responded to the location.

The caseworker discovered that nine adults and four children occupied the two-bedroom basement apartment. The apartment was filthy, foul-smelling, lacked heat and the children were urinating in a bucket. Rina agreed to a safety plan requiring that she and the children stay with a friend in the second-floor apartment in the same building, but she moved three times over the following week. She signed a case management plan. Under the plan, she agreed that she and the children would remain in the friend's home, which the Division had approved and from which they had moved. Rina also agreed to address the children's educational and clothing needs. The Division provided her with diapers and clothing for the children.

Within a few days of entering into this case plan, Rina was no longer welcome at her friend's home. The Division arranged for the family's temporary placement at a Newark shelter, but Rina left four days later. She and the children returned to the two-bedroom basement apartment. When the Division investigated the apartment again, it was in the same "deplorable" condition. Nick, then only seven months old, appeared sick. He was wearing ill-fitting shoes, jeans with dried feces caked on the inside, and clothes generally inappropriate for the weather. The Division effectuated an emergency Dodd[4] removal of the children. Nick and Sally were ultimately placed with their current foster parents.

The Division initiated abuse or neglect proceedings under Title Nine, N.J.S.A. 9:6-1 to 9:6-8.106, but failed to serve defendant with a copy of the complaint, although he was housed at the Hudson County Jail at that point. After he was deported, the Division still did not contact defendant, although it attempted to obtain information from Rina, who denied any knowledge of his whereabouts.

The Division filed its complaint for guardianship in June 2010. Following a case management hearing in January 2011, Rina provided the Division with a phone number for defendant in Haiti and, in February, provided defendant's address. The Division mailed the guardianship complaint to him along with an application for appointment of assigned counsel.

In April 2011, defendant contacted the Division. He informed the Division that he wanted his children to live with him in Haiti. He told the Division that as a result of the earthquake, he was living in a tent, but offered a Florida relative as an alternative placement for his two children. The Division was unable to contact this relative. Defendant also offered his mother as a placement option, but she was also living in a tent in Haiti.

Once defendant obtained counsel, he participated, albeit telephonically, in a number of proceedings. In one such proceeding, the court expressed its understanding that defendant wanted the children to join him in Haiti:

THE COURT: . . . What I understood from reading the reports is that . . . it was not your thought [for] your children to be returned to you in Haiti, that you do not want that to happen. I now hear from the Division that the Division believes that you do want the children to be placed with you in Haiti, is that correct?
[DEFENDANT]: I don't want that to happen. If I can't come back there to take care of my kids I would want to have my kids with me. Because wherever they are at I want them to be with me, because I'm their father. They want to give me the orders and I paid my taxes in the U.S. I will – and I'll do little bit things -- they deport me. My kids can't live without me. Anybody couldn't care for my kids more than I do.

In his trial testimony, Dr. Kirschner expressed the opinion that Nick and Sally exhibited a "secure level of attachment" to their foster mother. He testified that because defendant had been deported, he was unable to conduct a bonding evaluation between defendant and the children. He explained that conducting a telephonic bonding session would have been challenging to undertake and of little use. In his opinion, it was "almost impossible . . . to imagine" that any attachment had developed between defendant and Nick in the month between Nick's birth and defendant's arrest that would present any negative consequences to Nick if defendant's parental rights were severed.

As for Sally, Dr. Kirschner testified that she had had a greater opportunity to interact with defendant, but, even if any bond had ever existed between them, the negative impact from its disruption would already have materialized at the time of their separation and would likely not linger several years later, particularly given that she had developed a secure attachment to her foster mother.

The doctor testified that in his opinion, it was in the children's best interests that defendant's parental rights be terminated and the children adopted by their foster parents. He expressed the belief that delaying permanency until defendant could reenter the United States to parent them would harm the children, who would come to feel insecure in their placement with parental figures with whom they had already securely bonded. Moreover, Dr. Kirschner testified that uprooting them to live in Haiti, on the other hand, would subject them to even more enduring trauma both from disruption of their bond with their foster parents and adjustment to a different home environment and culture.

In his telephonic testimony on the second day of trial, defendant testified that he had had no contact with the children since his arrest in 2009. When asked directly about his plans for Sally and Nick, he responded that he wanted his children to be placed with relatives for now. He stated that his older brother, who lived in Brooklyn, was willing to look after Nick and would ask their cousin, who also lived in Brooklyn, whether she would be willing to look after Sally. He provided both of their names, but neither of their addresses, and acknowledged that he had not suggested them to the Division earlier. Defendant acknowledged that he was unable to care for the children at that time. He testified that he was unemployed, living in a tent with a dirt floor and no running water, and the camp where he lived was infested with mice and mosquitoes that could carry the Dengue virus. He expressed the desire to have his children stay with family for the time being because he would "be back one day." He repeatedly stated that Haiti was the "wors[t] ...

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