NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
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
appeal from Superior Court of New Jersey, Chancery Division,
Family Part, Essex County, Docket No. FG-07-0197-15.
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
E. Krakora, Public Defender, Law Guardian, attorney for minor
A.E.C. (Tracye Wilson Elliot, Designated Counsel, on the
Judges Espinosa, Suter and Guadagno (Judge Guadagno
guardianship matter initially concerned three children born
to defendant A.K. (Ali). 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
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.
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
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.
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."
cooperated with the Division's investigation, allowing
access to his home, providing his birth date, phone number,
and social security number as well as contact information for
Eric's mother and grandmother. Eric advised the
caseworker he had filed for legal and residential custody of
Adam in March 2012 and was told that, because he was in
arrears on his child support obligation, he needed to provide
confirmation he had employment that would permit him to
reduce his arrears. The Division provided a bed for Adam, who
was then sleeping in a bed with two other 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.
September 2012, a second referral to the Division was made by
an anonymous neighbor of Ali's, reporting drug use by
Ali, her sister and mother while children were in their care.
The reporter stated she observed Ali smoking marijuana along
with her mother; that Ali's four-year-old child, N.K.
(Nick), was "always" outside, unsupervised, and ate
dry, uncooked noodles. The harm alleged was substantial risk
of physical injury and inadequate supervision. The
investigation confirmed Adam continued to reside with Eric at
this time and, although child welfare concerns persisted
regarding Ali's admitted drug use, the allegations of
neglect and inadequate supervision were deemed to be
gave birth to a third child, E.S.K. (Eddie), on June 24,
2013, and alleged Eric was the biological father. Nell was
displeased that Eric had another child with Ali and, by July
2013, Adam returned to live with Ali.
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.
and June 2014, the Division embarked upon an extensive search
to locate Eric. The search ended, by coincidence, on June 18,
2014, during an unannounced home visit to Ali. Eric emerged
from her residence as Ali was speaking with the caseworker.
The caseworker exchanged contact information with Eric. She
also advised him a Family Team Meeting was scheduled for June
23 at the Division's Newark office and it was important
for him to attend. The caseworker contacted Eric on the day
of the meeting to confirm he would attend. He stated he would
not attend because his grandmother was hospitalized with an
unknown illness. 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.
Division's goal changed from reunification for the three
children to adoption in January 2015 and a guardianship
complaint was filed in February 2015.
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
first appearance in the guardianship litigation was on
January 14, 2016, approximately eleven months after it had
been initiated. Although he had paid child support for Adam
without challenging paternity, Eric requested a paternity
test. 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.
trial judge engaged in a colloquy with Eric regarding the
"road map" of the litigation and explained:
[T]hat takes a couple of weeks to get a paternity test.
You'll have to go and they just take some saliva or
something like that. And, then, you're certainly entitled
to be eligible to parent your child if you wish. The Division
probably will have to assess you and I mean, that's kind
of a harsh term, but they just have to see, you know, if
things are appropriate. We just want the children to be in
safe appropriate homes. And they'll have to establish a
plan and a goal with respect to you. And . . . you have an
attorney . . . and you have a caseworker. If you feel that,
you know, you have questions that aren't being answered
or anything along those lines you cal[l] your attorney.
She's very good and she'll work with the State's
attorney and try to resolve any of your issues. And anything
that can't be resolved they'll bring to me and
I'll resolve it.
Division scheduled Eric and Nell for psychological
evaluations for February 3, 2016 with Dr. Mark Singer, a
been informed that Eric was employed, 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.
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.
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.
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.
judge inquired further to get a measure of what was necessary
to get the case ready for trial. He asked Eric directly,
"are you interested in parenting?" When Eric
stated, "[y]es," the judge replied,
"[g]ood." The judge ascertained the caseworker had
been to Eric's residence and then said to the DAG,
"[a]nd, so, you just need an evaluation of him?"
She agreed and also stated there were a few other outstanding
issues. The judge then addressed Eric again:
THE COURT: All right. I'm going to still set trial dates
and the Division will work with you and we'll see where
we are come April, May.
[ERIC]: All right.
THE COURT: Okay? Do you have any questions for me by the way?
[ERIC]: No, sir.
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
THE COURT: Do you want to parent [Adam]?
THE COURT: And why were you not involved earlier in the
[ERIC]: Because during that time the mother she had, you
know, a lot of trouble. She didn't like my
fiancée, so both of them was going back and forth at
that time. So to not have no trouble I just told her look, I
will visit him with you and that's how I see him. But she
wouldn't let me come to her mother's house, because
that's where she was staying. And her mother didn't
want me there. So I couldn't see him at all.
[DAG]: But the child was in placement and [Eric] was aware
that the child was in placement, so I'm not speaking
about the time when [Adam] was with the mother. It's when
the child was in placement.
[ERIC]: Oh, yes, about that. I was given a number to call the
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
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?
THE COURT: Do you want that?
THE COURT: Are you going to go? We're going to set it up?
THE COURT: Okay. You have every right.
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.
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, "[s]o
the reason we need an evaluation is to see if anything needs
to be done and what the issues are, okay? So it's
important you go on the sixth, April 6th." The next
hearing date was scheduled for April 13.
did not attend the April 6 psychological evaluation or the
April 13 proceeding. The DAG advised the court the matter
would not be ready to proceed on the scheduled trial date of
May 4 because Eric had not yet completed the psychological
and bonding evaluations. Eric was reached by telephone,
placed under oath, and provided the following explanation:
The reason why I missed the appointment is because I went
downtown local Penn Station and the 71 to Livingston came and
I got on that one. And when the lady told me that she
doesn't go near the office I had got off and it was 1:30
at that time. So I was at the other bus stop waiting for the
correct bus and it didn't reach me until 3:30. So I
didn't want to appear at the office a whole hour late. So
I called in for him to call me back and reschedule and I
didn't get no call back that whole day.
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.
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
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.
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.
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.
management review hearing was held on May 23, 2016. Eric had
been scheduled for evaluation by Dr. Singer at 9:00 that
morning the fourth scheduled date. He did not appear. The DAG
advised that the case manager received a text message from
Eric that morning saying he had a conference with one of his
children. Eric's attorney said she had received a text
message from him at about 6:30 a.m. saying his fiancée
was sick and he had no one else to care for the children. She
said, "[h]is fiancée is very sick in bed, so
he's taking care [of the child] and I think he might have
had to attend a school thing in her place." An effort to
telephone Eric was futile, reaching only his voicemail.
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 . . . we've had many
frank discussions about the need for him to attend these
evaluations which makes me feel as if these are legitimate
judge then reviewed the chronology of missed evaluation
appointments. The first evaluation on February 15 was
missed as a result of the fire, the occurrence of which was
confirmed with the Red Cross. The second scheduled
evaluation, on April 6, was missed because Eric got on the
wrong bus. It was represented that Eric missed the third
scheduled evaluation, on April 18, because two of his
daughters were rushed to the hospital for sickle-cell
anemia-related issues. 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.
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.
trial judge agreed to consider scheduling a fifth date for
Eric's evaluation by Dr. Singer but cautioned that if he
did not appear, Eric would forfeit his opportunity to present
his own expert. He also required Eric to produce
documentation of the sickle-cell anemia hospital visit. The
judge scheduled the next conference for June 1 to determine
if a fifth evaluation date would be scheduled.
had notice of the June 1 conference but did not appear in
person and was not available to participate by telephone. His
attorney stated, "[h]e's taking care of his children
and they're screaming and crying and he can't get to
the phone." The DAG advised Dr. Singer could perform an
evaluation of Eric on June 10. Eric's attorney stated she
had stressed to him how important it was for him to provide
her with documentation of his daughters' hospitalization.
He replied they had lost the discharge papers and, although
he agreed to get copies or provide the name of the doctor for
her, he had failed to do so. The judge asked the DAG if the
Division was willing to give Eric a fifth attempt at the
evaluation, and she answered, "[y]es." The judge
again emphasized that if Eric failed to attend a fifth