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New Jersey Division of Child Protection and Permanency v. A.S.K.

Superior Court of New Jersey, Appellate Division

January 23, 2019

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

          On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0197-15.

          Joseph E. Krakora, Public Defender, attorney for appellant (Kourtney J.A. Knop, Designated Counsel, on the briefs).

          Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Paul H. Juzdan, Deputy Attorney General, on the brief).

          Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.E.C. (Tracye Wilson Elliot, Designated Counsel, on the brief).

          Before Judges Espinosa, Suter and Guadagno (Judge Guadagno dissenting).

          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.


         Adam was born on November 14, 2009. Although Eric reported that his relationship with Ali ended approximately seven months earlier, he is listed as the father on Adam's birth certificate.

         Adam began residing with Eric in March 2012 after Ali contacted him through Facebook. The other residents of the three bedroom apartment were: Eric's fiancée, N.R. (Nell), his biological child with Nell, M.C., (born August 14, 2011), Nell's two children and Eric's sister. Before Adam came to live with him, Eric had last seen his son in July 2011. He told the caseworker he had been unable to see him more frequently because he was working on construction jobs out of town.

         The first referral to the Division of Child Protection and Permanency (the Division) was made in April 2012, after Eric brought twenty-nine month-old Adam to the pediatrician with severe eczema. Adam was undernourished, weighing twenty-one pounds, the weight of a child half his age. His speech was mumbled. Eric learned from the pediatrician that Adam had not been to the doctor in over two years and was behind in his immunizations. Eric stated his earlier attempt to take Adam to the doctor had been thwarted because Ali failed to provide him with the child's "medical card."

         Eric cooperated with the Division's investigation, allowing access to his home, providing his birth date, phone number, and social security number as well as contact information for Eric's mother and grandmother. Eric advised the caseworker he had filed for legal and residential custody of Adam in March 2012 and was told that, because he was in arrears on his child support obligation, he needed to provide confirmation he had employment that would permit him to reduce his arrears. The Division provided a bed for Adam, who was then sleeping in a bed with two other children. The April 2012 investigation summary reported Eric "followed-up with all the child's medical appointments" and Adam was "now up to date with his immunizations and . . . receiving treatment for his eczema." Because Adam was residing with Eric, the allegation of abuse and neglect against Ali was deemed unsubstantiated.

         In September 2012, a second referral to the Division was made by an anonymous neighbor of Ali's, reporting drug use by Ali, her sister and mother while children were in their care. The reporter stated she observed Ali smoking marijuana along with her mother; that Ali's four-year-old child, N.K. (Nick), was "always" outside, unsupervised, and ate dry, uncooked noodles. The harm alleged was substantial risk of physical injury and inadequate supervision. The investigation confirmed Adam continued to reside with Eric at this time and, although child welfare concerns persisted regarding Ali's admitted drug use, the allegations of neglect and inadequate supervision were deemed to be unfounded.

         Ali gave birth to a third child, E.S.K. (Eddie), on June 24, 2013, and alleged Eric was the biological father. Nell was displeased that Eric had another child with Ali and, by July 2013, Adam returned to live with Ali.

         In December 2013, the Division filed for and was granted care and supervision of all three of Ali's children (the FN litigation). On April 9, 2014, the Division executed an emergency removal of the three children from Ali's residence pursuant to N.J.S.A. 9:6-8.29 and -8.30. Initially, the children were placed with Ali's cousin, S.K. However, in August 2014, S.K. advised the Division that she wanted all three children removed. The children were then placed with M.L. (Maisie), a resource identified by Ali. The Division was unable to contact Eric for other suggested resources because his whereabouts were unknown.

         In May and June 2014, the Division embarked upon an extensive search to locate Eric. The search ended, by coincidence, on June 18, 2014, during an unannounced home visit to Ali. Eric emerged from her residence as Ali was speaking with the caseworker. The caseworker exchanged contact information with Eric. She also advised him a Family Team Meeting was scheduled for June 23 at the Division's Newark office and it was important for him to attend. The caseworker contacted Eric on the day of the meeting to confirm he would attend. He stated he would not attend because his grandmother was hospitalized with an unknown illness.[2] The caseworker stressed the importance of his attendance and stated if he could not attend, he needed to remain in contact with her so the Division could discuss the permanency plan for his children. Thereafter, the Division was unable to contact Eric because his telephone number was shut off. As of January 2015, Eric had not contacted the caseworker.

         The Division's goal changed from reunification for the three children to adoption in January 2015 and a guardianship complaint was filed in February 2015.

         Thereafter, the Division was again unable to locate Eric for an extended period of time. Rosalyn Moulton, the Primary Worker for the Division on this matter, testified she was in the process of checking addresses for him in January 2016 when his grandmother provided an address for him in East Orange. While she was on her way there, she received a call from Eric, who had been called by his grandmother, and was then able to meet with him.

         Eric's first appearance in the guardianship litigation was on January 14, 2016, approximately eleven months after it had been initiated. Although he had paid child support for Adam without challenging paternity, Eric requested a paternity test.[3] Eric's attorney represented that, pending the results of the paternity test, Eric "would like to be a placement. He's willing to work with the Division, do whatever he needs to do." Eric's attorney also asked for visitation to be scheduled once paternity was established. The Division did not object.

         The trial judge engaged in a colloquy with Eric regarding the "road map" of the litigation and explained:

[T]hat takes a couple of weeks to get a paternity test. You'll have to go and they just take some saliva or something like that. And, then, you're certainly entitled to be eligible to parent your child if you wish. The Division probably will have to assess you and I mean, that's kind of a harsh term, but they just have to see, you know, if things are appropriate. We just want the children to be in safe appropriate homes. And they'll have to establish a plan and a goal with respect to you. And . . . you have an attorney . . . and you have a caseworker. If you feel that, you know, you have questions that aren't being answered or anything along those lines you cal[l] your attorney. She's very good and she'll work with the State's attorney and try to resolve any of your issues. And anything that can't be resolved they'll bring to me and I'll resolve it.

         The Division scheduled Eric and Nell for psychological evaluations for February 3, 2016 with Dr. Mark Singer, a licensed psychologist.

         Having been informed that Eric was employed,[4] the judge stated he would try to set court dates that were as convenient as he could around Eric's schedule. He repeatedly asked Eric if he had any questions and Eric replied he had none.

         The judge told Eric he would like to schedule return dates every thirty days in the guardianship matter and asked Eric if he knew what his schedule was. Eric replied he did not know because the scheduler at work was out of town. After consulting with counsel, the judge scheduled the next appearance for February 12, 2016.

         Eric appeared on the next hearing date. He had completed the paternity test on the previous day. Both Eric and Nell were scheduled for a psychological evaluation with Dr. Singer on February 15, 2016. The judge confirmed Eric knew where Dr. Singer was located and that the Division had provided him with a bus card to get there.

         Observing that the guardianship case was one year old, the judge stated he had to set a trial date. The deputy attorney general (DAG) representing the Division demurred, explaining:

[T]he problem with this is [Eric's] first appearance in this case was just when we last appeared.
So we would have to give him an opportunity to engage in the litigation. He's presented himself as a plan and the Division did meet with him. But we're unsure of what's going to happen with [Eric] because he just entered the litigation.

         The judge inquired further to get a measure of what was necessary to get the case ready for trial. He asked Eric directly, "are you interested in parenting?" When Eric stated, "[y]es," the judge replied, "[g]ood." The judge ascertained the caseworker had been to Eric's residence and then said to the DAG, "[a]nd, so, you just need an evaluation of him?" She agreed and also stated there were a few other outstanding issues. The judge then addressed Eric again:

THE COURT: All right. I'm going to still set trial dates and the Division will work with you and we'll see where we are come April, May.
[ERIC]: All right.
THE COURT: Okay? Do you have any questions for me by the way?
[ERIC]: No, sir.

         After learning Eric believed he was Adam's father even without the paternity test results, the judge asked about the apparent delay in his involvement in the litigation. The DAG advised Eric had been involved in the FN litigation for a brief time and then "went missing." The judge questioned Eric:

THE COURT: Do you want to parent [Adam]?
[ERIC]: Yes.
THE COURT: And why were you not involved earlier in the litigation?
[ERIC]: Because during that time the mother she had, you know, a lot of trouble. She didn't like my fiancée, so both of them was going back and forth at that time. So to not have no trouble I just told her look, I will visit him with you and that's how I see him. But she wouldn't let me come to her mother's house, because that's where she was staying. And her mother didn't want me there. So I couldn't see him at all.
[DAG]: But the child was in placement and [Eric] was aware that the child was in placement, so I'm not speaking about the time when [Adam] was with the mother. It's when the child was in placement.
[ERIC]: Oh, yes, about that. I was given a number to call the lady.
THE COURT: For visitation?
[ERIC]: Yeah, the lady, but every time I called, no answer.
THE COURT: [Y]ou're not visiting with [Adam] though are you?
[ERIC]: No.
THE COURT: Well, do you want to?
[ERIC]: Yes, I do, but I just didn't -
I know where she lives, but I just didn't want to -
THE COURT: So the Division will facilitate it. You don't have to go through the mother if you want visitation. You get your own visitation, do you understand?
[ERIC]: Yes.
THE COURT: Do you want that?
[ERIC]: Yes.
THE COURT: Are you going to go? We're going to set it up?
[ERIC]: Yes.
THE COURT: Okay. You have every right.

         Eric and his family lost their home in a fire on February 15, 2016. Moulton testified the Division provided Eric with a list of resources to deal with the loss caused by the fire. She continued telephone contact with him while he was living in a hotel and, thereafter, with his sister.

         Eric attended the next proceeding on March 10, 2016. Following receipt of the paternity test results, Eric was adjudicated to be Adam's father. Because Eric and Nell had been unable to attend the scheduled psychological evaluation as a result of the fire, the evaluation was re-scheduled for April 6. Eric did not object to this date. Once again, the judge addressed Eric directly and confirmed he knew the date and where he needed to go. The judge also explained, "[s]o the reason we need an evaluation is to see if anything needs to be done and what the issues are, okay? So it's important you go on the sixth, April 6th." The next hearing date was scheduled for April 13.

         Eric did not attend the April 6 psychological evaluation or the April 13 proceeding. The DAG advised the court the matter would not be ready to proceed on the scheduled trial date of May 4 because Eric had not yet completed the psychological and bonding evaluations. Eric was reached by telephone, placed under oath, and provided the following explanation:

The reason why I missed the appointment is because I went downtown local Penn Station and the 71 to Livingston came and I got on that one. And when the lady told me that she doesn't go near the office I had got off and it was 1:30 at that time. So I was at the other bus stop waiting for the correct bus and it didn't reach me until 3:30. So I didn't want to appear at the office a whole hour late. So I called in for him to call me back and reschedule and I didn't get no call back that whole day.

         The trial judge reminded Eric that it was his obligation to get on the right bus. Eric's attorney represented she had tentative dates for defense evaluations for April 27 and 29. While Eric was on the telephone, the trial judge expressed his displeasure and frustration that the Division's expert was unable to schedule a new date for Eric's evaluations for two months and observed he would probably have to adjourn the trial because the evaluations were not completed. He asked the DAG to have Dr. Singer available by telephone for their next conference on April 18 if he could not fit Eric in for an evaluation for two months.

         Eric did not attend the April 18 hearing. The DAG advised the court of the failed effort to have Eric evaluated that day. At her request, Dr. Singer had changed travel plans, paying a fee to change the plans, so he could conduct the evaluation of Eric that morning at 9 a.m. Eric was contacted and said he would be available. The DAG explained that the plan fell apart, however:

Dr. Singer got a call this morning . . . a little bit after seven, [Eric] indicated that he wasn't sure what time he would be coming to the evaluation. He left Dr. Singer a phone number to reach out to him. Dr. Singer placed several calls to him and never got a response. The caseworker was able to get in touch with [Eric] and [Eric] indicated that he had a family emergency with one of his other children.
[(Emphasis added).]

         Eric's attorney explained his daughter suffered from sickle-cell anemia; Eric had been in the hospital all night and "[t]hey were scrambling to find child care for the other children so that his fiancée could stay with the child in the hospital while he went to the evaluation." She represented Eric would get medical records to document the family emergency. No documentation of the medical emergency was ever provided.

         Turning to scheduling, the judge asked the status of evaluations. The Division still required an evaluation of Eric by Dr. Singer. Eric's attorney represented the defense psychological and bonding evaluations had been rescheduled for May 10 and 17.

         A case management review hearing was held on May 23, 2016. Eric had been scheduled for evaluation by Dr. Singer at 9:00 that morning the fourth scheduled date. He did not appear. The DAG advised that the case manager received a text message from Eric that morning saying he had a conference with one of his children. Eric's attorney said she had received a text message from him at about 6:30 a.m. saying his fiancée was sick and he had no one else to care for the children. She said, "[h]is fiancée is very sick in bed, so he's taking care [of the child] and I think he might have had to attend a school thing in her place." An effort to telephone Eric was futile, reaching only his voicemail.

         Eric's attorney represented that the defense evaluations were completed on May 17 and asked that another attempt be made to schedule an evaluation by Dr. Singer. Arguing that Eric had made efforts to participate, she stated he wanted "an opportunity to raise his son. And he understands the seriousness of the litigation and . . . we've had many frank discussions about the need for him to attend these evaluations which makes me feel as if these are legitimate excuses."

         The judge then reviewed the chronology of missed evaluation appointments.[5] The first evaluation on February 15 was missed as a result of the fire, the occurrence of which was confirmed with the Red Cross. The second scheduled evaluation, on April 6, was missed because Eric got on the wrong bus. It was represented that Eric missed the third scheduled evaluation, on April 18, because two of his daughters were rushed to the hospital for sickle-cell anemia-related issues.[6] Despite his counsel's requests, he had not provided her with any documentation of that medical emergency. The two emails Eric sent on the morning of May 23 were then read to the court. The one sent to the Division at 9:45 a.m. stated:

Good morning. Sorry, I missed your call. I was in a school conference for my son. I was going to call you but I'm driving[, ] the bus card came up missing and I got to get . . . this truck back to my sister. So I won't make it to this appointment with Dr. Singer.

         Eric's attorney reported she had been "very stern" with him about the need to attend the evaluation and believed he was going to attend because, in response to her advice, he stated, "no problem." Nonetheless, he failed to appear. Although the judge had consistently expressed sympathy and patience with the reasons previously proffered for Eric's failures to attend the evaluations, the conflicting reasons given for the failure that day presented a challenge to his equanimity. The judge questioned why Eric was "going to a school conference if he's home taking care of kids if the fiancée is sick," and further observed there was no answer when Eric was called.

         The trial judge agreed to consider scheduling a fifth date for Eric's evaluation by Dr. Singer but cautioned that if he did not appear, Eric would forfeit his opportunity to present his own expert. He also required Eric to produce documentation of the sickle-cell anemia hospital visit. The judge scheduled the next conference for June 1 to determine if a fifth evaluation date would be scheduled.

         Eric had notice of the June 1 conference but did not appear in person and was not available to participate by telephone. His attorney stated, "[h]e's taking care of his children and they're screaming and crying and he can't get to the phone." The DAG advised Dr. Singer could perform an evaluation of Eric on June 10. Eric's attorney stated she had stressed to him how important it was for him to provide her with documentation of his daughters' 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 ...

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