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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.,

(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.,

(1999). Notably, the

best interests standard is applied in light of "New Jersey’s strong

public policy in favor of permanency."

. "[T]he child's

need for permanency and stability emerges as a central factor."

Ibid.; see also In re Guardianship of J.C.,

(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.,

(2008); N.J. Div. of Youth & Family Servs.

v. G.L.,

(2007); N.J. Div. of Youth & Family

Servs. v. M.M.,

(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."

. 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.,

(2012) (quoting In re Guardianship of

D.M.H.,

(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."

.

"[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.,

(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

.

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."

. 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.,

(App. Div. 2001), certif. denied,

(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.

. 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.

(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.

.

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."

; see also In re Guardianship of J.N.H.,

(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.,

(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.

. 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.

. 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.

. 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.

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."

. 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."

(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.

. 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.

He also stated

he would allow his son's relationship with his foster parents to

continue in appreciation for what they had done.

When

asked how committed he was to care for his son, he responded, "A

hundred percent."

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.,

(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.,

(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.

.

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."

. 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."

.

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.'"

at 439 (quoting Matter of Guardianship of J.C.,

(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,

, 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,

.]

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.

.

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.,

(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

, 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.,

(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

("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