N.J. Div. of Child Prot. & Permanency v. K.N.
| Docket Number | A-2865-21 |
| Decision Date | 25 January 2024 |
| Parties | NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.N., Defendant-Appellant, and BIOLOGICAL FATHER OF E.N., WHOMSOEVER HE MAY BE, Defendant. IN THE MATTER OF E.N., a minor. |
| Court | New Jersey Superior Court — 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.
Submitted January 16, 2024
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No FN-12-0092-21.
Joseph E. Krakora, Public Defender, attorney for appellant (John Andrew Albright, Assistant Deputy Public Defender, of counsel and on the briefs).
Matthew J. Platkin, Attorney General, attorney for respondent (Renee Greenberg, Deputy Attorney General, on the statement in lieu of brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Noel Christian Devlin, Assistant Deputy Public Defender, of counsel and on the briefs).
Before Judges Mawla, Chase, and Vinci.
Appellant K.N. appeals from a June 10, 2021 order entered following a fact-finding hearing, in which the trial court concluded she abused or neglected her son, E.N. She also challenges an April 8, 2022 order terminating the abuse or neglect litigation. Further, K.N. appeals from a July 26, 2023 order entered following a limited remand, in which we directed the trial court to make findings whether K.N. received adequate notice of an April 23, 2021 proceeding at which her defense attorney was relieved, and whether she received notice of the factfinding hearing itself. We vacate the June 10, 2021 and April 8, 2022 orders and reverse and remand the July 26, 2023 order for further proceedings consistent with this opinion.
E.N. was born in November 2020. A relative learned of E.N.'s birth and called the Division of Child Protection and Permanency's (Division) with concerns about K.N.'s substance use. Clore Brown, a Division caseworker, called the hospital and spoke to a social worker, who reported K.N.'s urine tested positive for cocaine. E.N.'s meconium[1] test was pending but hospital staff reported he was suffering from "mild tremors, increased tone and . . . agitation." Staff also reported K.N. stated she was experiencing heroin withdrawal and was being treated for it.
Brown went to the hospital and attempted to speak with K.N. several times, but she refused to speak with him. K.N.'s nurse told Brown E.N.'s Apgar[2] and NAS[3] scores were within the normal range. K.N. eventually spoke with Brown, told him to contact her parents, and left the hospital against the doctor's orders.
Brown had little contact with K.N. throughout the course of his investigation. He testified she would respond to text messages and calls but "they were very brief conversations." Brown reported
K.N. had a history with the Division. Two previous pregnancies in 2015 and 2018 resulted in children born exhibiting symptoms of withdrawal. K.N.'s parental rights to those children were terminated, and they were adopted by their maternal grandmother.
E.N. was placed with the maternal grandmother during these proceedings and K.N.'s sister visited regularly to help care for him. K.N.'s sister expressed interest in adopting E.N.
The Division filed a complaint and order to show cause for custody, which the court heard virtually on December 9, 2020. An attorney from the Office of the Public Defender's (OPD's) Office of Parental Representation (OPR) appeared provisionally on behalf of K.N. K.N. did not appear.
Through defense counsel, K.N. consented to E.N.'s removal and placement with his maternal grandmother. K.N. also consented to a substance evaluation and agreed to follow recommendations from that evaluation and agreed to supervised visitation.
Brown's supervisor testified at the initial order to show cause hearing and stated the Division did not know K.N.'s whereabouts. K.N. provided a physical address, but when a caseworker went there, they discovered she had never lived there. Further, K.N. texted the Division that she would join the hearing by telephone but did not do so.
K.N. did appear by telephone at the virtual return order to show cause hearing on January 12, 2021. OPR represented her on a provisional basis. The court learned K.N. had tested positive for COVID-19, which delayed her substance abuse evaluation and treatment. K.N. told the court she was considering surrendering her parental rights to her sister and brother-in-law. Pending an interstate evaluation, the Division agreed the sister would likely be the best placement for E.N. K.N. stated she would likely not participate in the substance abuse evaluation and treatment if she were able to make an identified surrender of parental rights to her sister.
The court held a virtual case management conference on March 23, 2021. Defense counsel indicated she was appearing provisionally and was unsure if K.N. had completed a 5A form to determine if she was qualified for public defender representation. The Division advised its investigation had substantiated K.N. for abuse or neglect. K.N. attended the hearing and stated she did not complete a 5A form and needed another copy. The court noted one had been provided with the complaint but directed the Division to email K.N. another form. K.N. stated she could print the form when she received it. The court advised her, "it is very important to do this . . . [s]o that way you can be assured of having [counsel] represent you."
On March 30, 2021, the caseworker called K.N. and left a message, reminding her to complete the 5A and email it back to the worker. K.N. never complied with these instructions.
The court held another virtual hearing on April 12, 2021. K.N. did not appear, but new defense counsel was provisionally appointed for her. The court stated K.N. needed to confirm whether she wanted representation, otherwise counsel would be unable to appear at the fact-finding hearing. When the court inquired if defense counsel had any communication with K.N., the following colloquy ensued:
Defense counsel then objected to the Division's proposed expert testimony because the expert's report was issued four months after E.N.'s birth, which was not within a reasonable time frame. Further, the report was based upon medical records that were, "themselves, not made to verify [the expert's] medical review." The court did not rule on the objection.
On April 16, 2021, defense counsel emailed the court and the Division the following:
I have not received discovery-it is due today We still do not know if the [c]ourt is going to order [me] to represent [K.N.] at the fact-finding[] or whether the [c]ourt is going to have [her] appear pro-se. I believe caselaw supports that the [c]ourt will have to address whether [K.N.] has [the] ability to represent herself prose.
Counsel argued if the court decided to have K.N. represent herself, the Division had to submit proof that K.N. was provided discovery pursuant to the court rules.
The Division sent defense counsel the discovery excluding the medical records two minutes later. Defense counsel responded stating she was "objecting to the expert testifying without the actual medical records being in evidence . . . ." Because "the medical records are not part of [the Division's] discovery" counsel requested an adjournment to subpoena the medical records and retain a defense expert. Counsel also objected to the fact-finding proceeding by way of Zoom or telephone and as it regards to K.N.'s representation, stating:
The Division objected to the adjournment request. The court ordered "[...
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