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New Jersey Division of Youth and Family Services v. F.M.

February 22, 2005


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FG-21-8-03.

Before Judges Cuff, Weissbard and Hoens.

The opinion of the court was delivered by: Hoens, J.A.D.


Submitted February 7, 2005

In this guardianship matter, defendant Florence M.*fn1 appeals from the entry of a judgment terminating her parental rights*fn2 and placing her two children in the care and under the guardianship of plaintiff Division of Youth and Family Services (DYFS). We reverse and remand.

Because of the grounds on which we base our reversal, we recite the facts and the procedural history of this matter at length. On December 13, 2001, Phillipsburg Police Officer Scott Imboden went to the apartment where Florence and Charles M. resided with their two children Ralph M., then aged twenty-eight months, and Elizabeth M. who was eight months old. His purpose was entirely unrelated to any issue involving Florence or Charles. Instead he was there to assist a detective from the Prosecutor's Office in arresting K.H., a friend of Charles's, on an outstanding warrant.

The apartment was on the second and third floors of a house on Bennett Street in Phillipsburg. While the officers were standing in the doorway on the first floor, Imboden recognized K.H. and arrested him. After making the arrest, K.H. informed Imboden that Charles was not home and he gave Imboden permission to enter the apartment. The officers went upstairs into the parties' apartment and searched the living room, kitchen, bedrooms and bathroom on the second floor as well as the room on the third floor. The reason for that search is not apparent from the record.

It is undisputed that Florence was at work when the search was conducted. Charles had left the children in the care of Carlos, a young adult, while he went shopping. When the police entered, Carlos was in the living room with Ralph, who was wearing only a diaper. There was a brown bag with vomit leaking through it on the floor a few feet from where Ralph was sitting and the room was littered with overflowing ashtrays and empty beer cans. Imboden then found Elizabeth in a crib in her bedroom. Next to the crib was a couch on which there were dirty diapers, empty beer cans, and cigarette butts. In addition, there was a mattress on the floor and clothes were strewn about the room.

According to Imboden's investigation report, the "kitchen had food and debris scattered about, there were numerous trash containers filled with empty beer cans, [and] food was scattered about the tops of both the countertops and the stove." There were also dirty dishes stacked in the sink with food residue on them. Imboden also observed that there "was very little or no edible food" inside the refrigerator and he did not see any baby formula or food for a small child in the kitchen. Imboden then went to the third floor of the apartment, where he found three people sleeping on the floor and another asleep in a bed. Imboden also found that there were numerous cases of beer on the third floor.

Imboden noticed that Ralph had red marks over much of his body, which Carlos thought might be flea bites from the family dogs. When Imboden advised his supervisor of his observations, the supervisor contacted DYFS and the zoning inspector. The zoning inspector arrived promptly and determined that the premises were fit to live in. As the zoning inspector was leaving, Charles returned home. Imboden informed Charles that the children would need to be taken to the hospital because of Ralph's rash and the condition of the house. Charles consented and the emergency squad transported both children to the hospital.

At the hospital, the doctor initially diagnosed the red marks on Ralph as scabies and concluded that Ralph must have suffered from that condition for several months. In addition, he noted that the tip of Ralph's penis was red, possibly due to"very poor" hygiene and his feet were also blackened by dirt. According to the doctor, Elizabeth had a diaper rash and showed signs of poor hygiene. Hospital workers bathed both children and treated them for scabies. Other doctors confirmed Ralph's diagnosis of scabies two days later and prescribed medication to treat it.

Florence, who at the time was nineteen years old, arrived at the hospital after her work shift ended. By that time, the children had been bathed. She told Imboden that the house was messy because Charles had hosted a party the night before, that she had stayed on the second floor with her children while the party was in progress on the third floor, and that she had told Charles to clean up the mess when she left for work that morning. She was not aware that Charles had not done so or that he had left Carlos in charge of the children. Respecting the children's health, she told Imboden that she had not taken Ralph to a"certified doctor" for approximately six months.

While medical records revealed that Ralph's last visit with a doctor was in July 2001, Florence did not tell the officer or DYFS that the children had been seen at the home by a public health nurse who reported on September 17, 2001 that she had found nothing wrong with them. Florence told DYFS caseworker Sharon Walsh that she thought the red marks on Ralph were the result of flea bites, that she had not sought medical attention because the condition "wasn't that bad" and that she had planned to take him to the doctor on her next day off, a few days later. At trial, she disputed Imboden's assertion that she had no food for the children. She testified that there was baby formula in the house because she got a month's supply at a time through the WIC program and would"leave it in the bag and put it in the bottom of the closet, in the bottom of the right pantry." She specifically recalled that she had last gotten a supply on the first or second day of December.

After Walsh informed Florence that it was not safe to return the children to her care because of the condition of her home and Ralph's untreated scabies, Florence consented to having her children placed outside the home for fifteen days. Florence immediately asked Walsh what she needed to do in order to have her children returned to her. Walsh told her that the residence needed to be cleaned. When Walsh testified at trial, she conceded that she visited the residence the next day and found that it had been cleaned and was in a condition she found to be acceptable. Based on the consent, however, DYFS had already placed Ralph and Elizabeth in foster care.

On January 9, 2002, DYFS filed its complaint and was granted temporary custody of Ralph and Elizabeth. On the same day, the Family Part judge issued an Order to Show Cause and to Appoint a Law Guardian with Temporary Custody. The order stated that "the removal of the children was required due to imminent danger to the children's life, safety or health" as "both parents failed to have children treated for various medical conditions, notwithstanding they were advised to do so by treating pediatricians."

Florence requested that DYFS place the children with her parents, F.T. and S.T., but the children could not be immediately placed there because DYFS had an open case involving the maternal grandparents. DYFS later ruled out Florence's parents as a potential placement because Florence's mother, S.T., had once tested positive for marijuana and declined to comply with a recommendation that she attend early intervention services. DYFS also considered the children's maternal great aunt, E.V., as a possible placement. DYFS decided not to place Ralph and Elizabeth with E.V. because of her husband's history of domestic violence arrests and heavy drinking. No other family members were considered as placement alternatives.

On February 22, 2002, Daniel Bromberg, Ph.D., conducted a risk assessment of Florence and Charles"to assess their parenting ability, their ability to provide their children with a safe living environment, and their ability to protect their children from harm." Florence maintained during the evaluation that her family was not in need of any services except"money management, maybe." Dr. Bromberg believed that neither parent had any insight into why DYFS removed their children or the actions they needed to take to regain custody. His report included six recommendations of items to be addressed before either parent could regain custody of these children.

Dr. Bromberg's recommendations may be summarized as follows:

(1) Florence and Charles should consistently attend scheduled visits with their children for at least 12 consecutive weeks. If they cannot attend a scheduled visit, they should notify the appropriate agency representative by telephone at least 12 hours in advance of the scheduled visit; and

(2) Florence and Charles should attend and satisfactorily complete a parenting class in order to enhance their parenting skills and knowledge of child development; and

(3) Florence and Charles should be in psychotherapy, attend on a weekly basis, and should, in the therapists's opinion, demonstrate progress in parenting knowledge and skills; and

(4) Florence and Charles should undergo random urine screenings for both drugs and alcohol; and

(5) Either Florence or Charles should have full-or part-time employment sufficient to support their children; and

(6) Florence and Charles should have stable housing for a minimum of 6 months. DYFS should ensure that the domicile is neat, clean, child-proofed, and generally suitable for habitation by young children.

On April 25, 2002, DYFS referred both Florence and Charles to Catholic Charities in Phillipsburg for individual and couples counseling. Catholic Charities began trying to contact Florence to schedule her visits two or three months later, in July 2002. Records produced at trial reveal that from July 2002 through October 2002, Florence's telephone was out of service, she did not return messages, and she otherwise"declined contact." Florence did appear once for therapy, but arrived a half-hour late and was therefore unable to participate in treatment. She did not appear for the rescheduled session. Catholic Charities concluded that Florence had not made"any significant attempt" to participate in therapy and closed the file in December 2002.

At trial, Florence testified that she could not attend therapy because of transportation problems and conflicts with her work schedule. She stated that the only days the therapist was available, Tuesdays and Thursdays, were days she was required to be at work. According to DYFS's records, Florence expressed her interest in receiving therapy at Catholic Charities during a court appearance on December 4, 2002. DYFS referred Florence again to Catholic Charities, but bad weather prevented her from attending. There is no suggestion in the record that DYFS made any other referral or attempted to address Florence's concerns about the conflict between her work schedule and the availability of the therapist. At trial, DYFS caseworker Lori Lupo conceded that Florence had alerted her to the fact that the counselor"wasn't making herself available."

Respecting Dr. Bromberg's recommendation that Florence attend and complete parenting classes, in October 2002, DYFS caseworker Lupo gave Florence a telephone number to call to arrange for parenting classes at the Family Resource Center. At trial, Lupo testified that the next available class would have been in January 2003, but that Florence did not attend.

In January 2003, Florence's case was assigned to the Northern Region Adoption Resource Center (NRARC). Rynell White, Florence's caseworker, testified that it was difficult to provide services for Florence because NRARC and all of its resources are located in Bergen County and Florence was living in Warren County. In her words, because of the distance and the relative lack of resources near where Florence lived and worked, finding services was"a hassle" and the case was an"ordeal." White testified that she attempted to find parenting classes for Florence in Warren County but that each time she found a suitable class, it was already filled up and that there were no classes with openings available. NRARC then referred Florence to a parenting class given by Catholic Charities in Bridgewater, which is in Somerset County, but Florence could not attend.

Instead, in an effort to comply with this requirement, Florence found, enrolled in and attended several classes provided by Northwest New Jersey Community Action Program (NORWESCAP). NORWESCAP documents demonstrate that she participated in two in-home parenting classes provided by NORWESCAP in the fall of 2003 and that she also participated in the NORWESCAP eight-week long"parent's anger management program." Isle ...

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