RECORD IMPOUNDED

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

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.

NOT FOR PUBLICATION WITHOUT THE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.

May 23, 2017
2 A-4577-15T2

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.
3 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 
4 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 
5 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 
6 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.
7 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.
8 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.
9 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?
10 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.
11 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.
12 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:
13 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:
14 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 sicklecell 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 
15 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.
16 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.
17 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.
18 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 
19 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 
20 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 
21 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 
22 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. 
23 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., 202 N.J. 145, 168 

(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., 161 N.J. 337, 348 (1999). Notably, the 

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

public policy in favor of permanency." Id. at 357. "[T]he child's 

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

Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 26 (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 
24 A-4577-15T2

law based on those findings. N.J. Div. of Youth & Family Servs. 

v. E.P., 196 N.J. 88, 104 (2008); N.J. Div. of Youth & Family Servs. 

v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family 

Servs. v. M.M., 189 N.J. 261, 278-79 (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." K.H.O., supra, 161 N.J. at 348. 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., 211 N.J. 420, 449 (2012) (quoting In re Guardianship of 

D.M.H., 161 N.J. 365, 383 (1999)). "The harm shown . . . must be 

one that threatens the child's health and will likely have 
25 A-4577-15T2

continuing deleterious effects on the child." K.H.O., supra, 161 

N.J. at 352.

"[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., 103 N.J. 591, 

613 (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 K.H.O., supra, 161 N.J. at 352-54.

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 
26 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." 

A.W., supra, 103 N.J. at 607. 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 
27 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., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 

171 N.J. 44 (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 
28 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 
29 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 
30 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 
31 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 
32 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. K.H.O., supra, 161 N.J. at 354. 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 
33 A-4577-15T2

reasonable. A.W., supra, 103 N.J. at 610 (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 
34 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 
35 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. 30:4C15.1(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. K.H.O., supra, 161 N.J. at 

354-55.

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
36 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 
37 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." E.P., supra, 196 N.J.

at 104; see also In re Guardianship of J.N.H., 172 N.J. 440, 472 

(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 
38 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 
39 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 
40 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., 202 N.J. 145 (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. Id. at 

154-44. C.M. was married with four children. The ensuing conflict 

 

8 Eric did not cite I.S. in support of his arguments on appeal.
41 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. Id. at 151. 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. Id. 157-58. 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. Ibid. 

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." Id. at 159. 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." Ibid. (alteration in original). The trial 

judge rejected the need for a bonding evaluation or psychological 
42 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. 

Id. at 160. 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. Ibid. He also stated 

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

continue in appreciation for what they had done. Ibid. When 

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

hundred percent." Ibid.

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.
1 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.
2 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.
3 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 
4 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 
5 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 
6 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."
7 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., 202 

N.J. 145, 178 (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 
8 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.
9 A-4577-15T2

In New Jersey Division of Youth and Family Services v. 

A.R., 405 N.J. Super. 418, 439 (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. Id. at 429-30. 

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." Id. at 430. 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." Id. at 430-31.

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.'" Id. at 439 (quoting Matter of Guardianship of J.C., 

129 N.J. 1, 18 (1992)). 
10 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, 202 N.J. at 176, 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, 202 N.J. at 179.]
11 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. Id. at 182-83. 

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.
12 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 
13 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., 

211 N.J. 420, 453 (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.
14 A-4577-15T2

Much like the irrelevant services ordered in I.S., supra, 202 

N.J. at 178, 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 
15 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:
16 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., 412 N.J. Super. 593, 632 (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 J.C., supra, 129 

N.J. at 7-8 ("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 
17 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.