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New Jersey Division of Child Protection & Permanency v. R.N.

Superior Court of New Jersey, Appellate Division

September 27, 2013

R.N., Defendant-Appellant IN THE MATTER OF THE GUARDIANSHIP OF H.R., a minor


Submitted September 18, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-20-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Adrienne Kalosieh, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Cassandra E. Rhodes, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor H.R. (Caitlin McLaughlin, Designated Counsel, on the brief).

Before Judges Lihotz, Maven and Hoffman.


Defendant R.N., the biological father of H.R., challenges a September 28, 2012 Family Part order terminating his parental rights and granting guardianship to the Division of Child Protection and Permanency (the Division)[1] to secure the child's adoption. On appeal, defendant argues the evidence was insufficient to satisfy the statutory requirements of N.J.S.A. 30:4C-15.1a. We affirm.


H.R. was born in 2005. The Division became involved with the family, when M.R., his mother, presented then two-year-old H.R. to AtlantiCare Regional Medical Center (ARMC) for treatment. At that time, M.R. was residing with her paramour J.G., the biological father of H.R.'s younger sister.[2] H.R. had sustained a "blow out fracture to the right maxillary sinus [(eye)] caused by trauma, " bruising on his shoulder and thigh, and a lump on his head. Following a same-day investigation, the Division determined H.R.'s injuries resulted from an assault by J.G. and both M.R. and J.G. abused drugs. The Division effectuated an emergency removal of H.R. and his sister.[3] On October 10, 2007, the Division petitioned for and was granted care, custody and supervision of H.R.

When discharged from the hospital, H.R. was placed with a resource family. Thereafter, H.R.'s maternal grandfather E.R. was evaluated as a placement resource. Although defendant was not initially named in the complaint, within two weeks of H.R.'s removal, the Division contacted him and later added him to the litigation. Defendant explained he had been incarcerated since February 5, 2005, following convictions for the manufacture and possession of cocaine with intent to distribute, resisting arrest and conspiracy to commit theft. He admitted he had never met H.R. and requested a paternity test. Defendant also suggested the Division contact his mother P.T., if the test proved H.R. was his son. On December 18, 2007, defendant attended a court hearing, where he was ordered to undergo psychological and substance abuse evaluations and comply with any recommended treatment. Further, he was granted weekly supervised visitation upon his release from prison. Later that month, the Division placed H.R. with E.R.

H.R. and his siblings remained in E.R.'s care until April 22, 2008, when the Division executed an emergency removal after discovering E.R. violated a court order by leaving the children alone in M.R.'s care. H.R. returned to his resource family. The Division permitted E.R.'s resumption of care for H.R. and his siblings, anticipating execution of a kinship legal guardianship plan.

Defendant was released from custody on April 16, 2008 and the Division immediately referred him to the Center for Family Services (CFS) for substance abuse evaluation, and to John Quintana, Ph.D., for a psychological evaluation. A series of orders granted defendant weekly supervised visitation in the Division's office or as arranged with and supervised by E.R. Defendant did not schedule visits through the Division; visitation occurred approximately every other week at E.R.'s home.

Defendant missed scheduled substance abuse evaluations, three scheduled psychological evaluations and at least one scheduled visitation. He also failed to attend several court hearings. After a May 5, 2008 preliminary substance abuse evaluation, defendant was directed to participate in an extended rehabilitation assessment. He failed to do so and the program terminated him for non-compliance.

On August 22, 2008, defendant was arrested for unlawful possession of a weapon and returned to prison. He was released in October 2008, but his subsequent attendance at court hearings was inconsistent. He attended the court hearing that month, missed the next scheduled hearing held in December 2008, but attended the February 2009 hearing. That same month, defendant was again imprisoned. He was released on May 7, 2009 and the Division resumed services to effectuate his reunification with H.R. On July 6, 2009, defendant attended a substance abuse evaluation. Based on the results, it was recommended he attend Level I Outpatient Treatment, monitored by SODAT. Defendant declined to comply. He attended a visit with H.R. in July 2009, then missed eight visits and CFS terminated him for non-attendance. Defendant committed another non-violent criminal offense and was placed in custody on September 22, 2009.

Because E.R. was unable to properly provide for their needs, he voluntarily requested the children return to the resource family on April 28, 2009. E.R. said he considered the children's placement with the resource family as if they were with "family friends." Thereafter, H.R. and his siblings continuously remained in the resource family's care.

The Division investigated H.R.'s possible paternal relatives for placement. At defendant's urging, P.T. was assessed. She revealed that the Division had filed a Title 9 action against her, which ultimately resulted in the removal of her children because of substance abuse. The Division also learned P.T.'s son, who resided in her home, had a criminal history. Given these facts, the Division rejected P.T. as a possible placement for H.R. and issued a "rule-out letter" on May 11, 2009. When defendant renewed his request for P.T. to be considered as an alternative placement, a subsequent review occurred. She was again ruled out, and notified by the Division on July 8, 2011.

The Division considered A.R., a maternal aunt, who had assisted E.R. in caring for H.R., but then ruled her out as a placement "because she had violated a prior custody order" by permitting H.R. to be left alone with his mother. The Division also considered P.Q., a maternal great aunt who lived in Pennsylvania, but on January 16, 2009 she was ruled out as a placement option for H.R.'s sister, because "[s]he didn't want to be considered." No other family member expressed interest as a potential placement option.

Defendant was released from jail in November 2009, but on December 12, 2009, he was charged with simple assault, resisting arrest, eluding a police officer, distribution of CDS, distribution and possession of CDS in a school zone, and manufacture, possession, and distribution of cocaine weighing over five ounces. He pleaded guilty to second-degree manufacturing, distribution, and dispensing cocaine, N.J.S.A. 2C:35-5A(1), -5B(2), and was sentenced to a seven-year prison term, subject to a three-year period of parole ineligibility, prohibiting his possible release before October 2013.

The Division decided to file a complaint seeking guardianship. At the time, defendant was incarcerated, and M.R. had already voluntarily surrendered her parental rights to these children, including H.R.

The six-day guardianship trial was conducted in the Family Part between September 19, 2011 and June 22, 2012. The Division offered testimonial evidence from its caseworker, Family Service Specialist II, Tamika McNair; H.R.'s resource mother, L.J.; and its expert, clinical psychologist Dr. Joanne Schroeder, Ph.D. Numerous documents were introduced into evidence. A writ for defendant's appearance allowed his trial participation. However, he did not testify, offer witnesses, or introduce other evidence.

In addition to recounting the history of the Division's involvement with the family, McNair described H.R.'s health and behavioral issues. She reported H.R. was anemic, may require speech therapy, and tended to be "very fearful of things[, ]" but had been getting better in recent months with his resource family's support and the services of Robin's Nest. McNair detailed H.R.'s comfortable relationship with his resource parents. She noted he relied on L.J. for comfort when he felt upset or picked on by his younger, more outgoing siblings. She also reported H.R. viewed his resource father as an authority figure. The Division had no concerns regarding H.R.'s interactions with either resource parent, or the other children in the home, including his two siblings.

McNair also recounted the Division's aid to defendant hoping to resolve his drug abuse and parenting deficits. She had no record showing he completed SODAT's or any other substance abuse treatment program. Defendant told her he completed an anger management course and was attending parenting classes; however, McNair could not secure substantiating documentation. She tried to obtain certificates of completion, but the phone numbers provided by defendant were disconnected. McNair had communicated with the Atlantic County Justice Facility prison program supervisor to acquire defendant's certificates of completion of prison programs, including masonry skills and relapse prevention, but received no responses to her inquiries. Defendant informed McNair when he completed parenting classes in February 2012. She admitted she made no attempt to confirm this assertion.

Since the time the court granted the Division custody, care and supervision of H.R., McNair asserted defendant failed to establish stable housing and continually moved from place to place. She also recounted ...

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