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Division of Youth and Family Services v. C.D.

February 27, 2007

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
C.D. AND E.D., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF H.D. AND Z.D., MINORS.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-46-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 5, 2007

Before Judges Seltzer and C.L. Miniman.

Defendants C.D. (mother) and E.D. (father) appeal from a final judgment terminating their parental rights respecting their adopted, special-needs children, H.D. and Z.D. Defendants assert that the trial court erred in finding that all four of the statutory criteria for terminating parental rights were satisfied by clear and convincing evidence. We affirm.

I.

C.D. and E.D. were married in 1974 and had six natural-born children. Their first child, a daughter, was born in 1975 and died in 1978. Their first son was born in 1976 and the second in 1979. Their fourth and fifth children, both daughters, were born in 1981 and 1983, respectively. Their last natural-born son was born in 1987.

Defendants, with the assistance of Lutheran Social Ministries, adopted their first special-needs child, H.D., in June 1991 when she was less than one month old. H.D. has Down's Syndrome and was born with an imperforate anus, which was corrected surgically after her birth. At that time, she was given a temporary colostomy until the anal surgery healed. Defendants took H.D. to her pediatrician for regular check-ups until she was seven years old. Her immunizations were not completed, although the defendants claimed that they were.

In July 1997, the Division of Youth and Family Services (DYFS) placed A., another special-needs, multiply handicapped child, in defendants' care as a pre-adoption placement. A. had Arthrogryposis Multiplex Congenita, which resulted in significant contractures and limb and bone deformities. She required a wheelchair. On May 14, 1999, a DYFS nurse-consultant expressed concern about the care A. was receiving in defendants' home in that she was not being taken for necessary medical appointments. Another nurse reported that C.D. was restraining A. in her crib as a punishment for drooling. A. was swaddled by C.D. and placed in a corner of her crib for five hours at a time for discipline. A. was also being home-schooled, which deprived her of needed therapies she would have received in school. Ultimately, DYFS determined that physical abuse was unfounded and medical neglect was not substantiated, although concerns remained about abuse and neglect by defendants.

Shortly after the DYFS nurse wrote this report, defendants requested that A. be removed from their home. They claimed that she had poor behavior, that a family member suffered a broken collar bone from a head-banging incident, and that the family had not had one hour of consecutive sleep in fourteen weeks. C.D. claimed that A. was in need of behavioral counseling. A. was removed from defendants' home in June 1999 and examined at Community Medical Center. She had ligature marks on both arms and her left leg.

In the meantime, defendants adopted Z.D., who was born on December 9, 1998, and placed with them from the hospital on February 10, 1999, through Lutheran Social Ministries. Z.D. had Prader-Willi syndrome, an illness marked by an inability of the child to know when he is satiated by food and, thus, is prone to overeating. Children with this syndrome suffer from immature sexual development, weak muscle tone, and behavior problems because they do not recognize cause and effect sequences.

Three years after the adoption of Z.D., Lutheran Social Ministries placed another special-needs child with defendants for adoption. N.O. was born on September 4, 2001, and arrived in defendants' home in April 2002. N.O. had been diagnosed with Cornelia de Lange Syndrome and other medical ills. N.O. was nourished through a feeding tube.

L.E., the fifth special-needs child to be place in the care of defendants, arrived in their home in October 2003, either through the intervention of Lutheran Social Ministries or some private adoption service. L.E. was a child with Down's Syndrome whose adoptive mother, M.E., surrendered her at the age of four-and-one-half years because M.E. was not able to provide adequate care for her. When L.E. arrived in defendants' home, she weighed twenty-seven pounds; was playful, sociable, and friendly; and had started potty training. M.E. kept in touch with defendants up to March or April of 2004, and then called again in October or November 2004.

In December 2004, DYFS received an anonymous report that L.E. appeared to be extremely thin. When Joleen Lopez, the DYFS social worker, arrived at defendants' home on December 29, 2004, to investigate the report, she asked to see L.E. She was told that L.E. was asleep in her room and Lopez then asked that L.E. be brought to her. C.D. told one of her adult daughters to get L.E. The daughter found L.E. in a car seat in her crib, restrained by the car seat strap and by terrycloth bindings on her wrists and ankles.*fn1 L.E. appeared malnourished to Ms. Lopez and was extremely hungry. When given a waffle, she quickly ate it. Ms. Lopez was told that L.E. would have different meals from the rest of the family in that much of her food was mashed up and she would be served only limited portions. L.E. showed signs of bruising around her wrists and ankles, indicating that she had been restrained.

Ms. Lopez arranged for a visit to the family pediatrician where she, defendants, and L.E. were met by DYFS nurse Patti L. Brown, who Ms. Lopez called for an abuse and neglect evaluation. The nurse observed that L.E.'s "appearance was striking because not only was she emaciated and very pale, but she had a red rash around her eyes and her hair was very thin and patchy. She had no notable subcutaneous fat. Her complexion was very pasty . . . ." Nurse Brown observed the sores and bruising on L.E.'s wrists. L.E. weighed only twenty-one pounds partially dressed although she was five years and ten months old. She had also lost one and a half inches of height. The pediatrician informed DYFS that he had not seen L.E. since March 2004 when she weighed twenty-seven and one-half pounds. Nurse Brown and the pediatrician agreed that L.E. should be admitted to Jersey Shore University Medical Center for a full workup. When that was accomplished, Ms. Lopez returned to defendants' home to bring the other special-needs children to Jersey Shore University Medical Center for evaluation. All four children were admitted to the hospital on Wednesday, December 29, 2004.*fn2

The following day, Nurse Brown went to the hospital to review the medical records. First, with respect to L.E., Nurse Brown learned that L.E., like H.D., was born with an imperforate anus that had been surgically repaired. Sometime subsequent to the initial surgery, L.E.'s colostomy was reversed. Defendants claimed that L.E. suffered from constipation, having bowel movements only every three to four days or more, and that she often required enemas, and so she was given castor oil daily. In addition, they reported that L.E. would swallow food whole and then vomit. As a result, defendants gave her only Pediasure during the day. She had been seen by a cardiologist in March 2004, but no follow up was done by defendants. A nutrition consultation was done at the hospital, and L.E. was found to be well below the fifth percentile for her age on a Downs' Syndrome growth chart. Her thirty-eight inches of height placed her in the twenty-fifth percentile. Her body mass index was nine and seven-tenths, which is considered extremely underweight. Her temperature was only 92.9°, well below normal. At the hospital L.E. was able to eat food without choking or vomiting.

A skin care consultation was also performed, which Nurse Brown summarized:

She was not only found to have sores on her face and her wrists, but she had multiple ulcerations on both wrists, her sacrum (tailbone), both buttocks, and her left ankle. These sores were in various stages of ulceration, and some had crusted over with tissue necrosis (black, dead skin) present. The ulcers were assessed to be pressure sores caused from prolonged periods in the same position (bed sores). They were most likely aggravated by the child picking at them. Wound care was prescribed along with frequent position changes. If left untreated, these wounds could have continued to ulcerate down to the bone and been a serious, life-threatening condition. [L.E.] was started on an oral antibiotic to treat her wounds systemically.*fn3

Over the weekend of January 1, 2005, L.E. experienced a critical drop in her electrolytes and was admitted to the pediatric intensive care unit, where she remained for several days. An eye examination detected a tiny retinal hemorrhage in one eye, and a gastrointestinal consultation determined that L.E. had fecal impaction, requiring several enemas to clear her bowel. By January 3, 2005, L.E. had gained one pound, within one week, she had gained seven pounds. DYFS classified L.E. as medically fragile.

While L.E. was in the hospital, C.D. admitted to slapping L.E. to the point where she would fall on the floor. At times she would shake her. C.D. further admitted that "[s]he also has bound [L.E.'s] hands with rope and left her alone in the car seat for the entire day and then fed [L.E.] Pediasure at night." She claimed that this treatment was necessary because L.E. was difficult to control. An investigation by Ms. Lopez revealed that sometimes L.E. would be restrained overnight or even for days on end. E.D. was aware that L.E. was being restrained; he was concerned that it was getting out of control, but he did nothing to interfere with, or take control of, the situation. Rather, he was concerned about detection.

At discharge, Dr. Steven Kairys wrote that L.E. presented with "severe, chronic and acute malnutrition with a marked loss of subcutaneous fat, hypothermia, marasmus [a wasting of the body], electrolyte, protein and mineral abnormalities." She also presented with "[m]arked inflicted physical injuries with multiple bruises and ligature marks on various parts of the body." Summarizing her hospital stay, Dr. Kairys wrote:

During her course in the hospital, [L.E.] did very well. She gained weight dramatically and rapidly. She fed well. She was eager to eat, eager to be cared for and interact with the staff. By discharge, she was much more active and interactive.

She no longer had any acute medical issues.

She was able to walk and feed herself and had much improved receptive and verbal abilities. There were never any concerns about her behavior, her interest in feeding and she ...


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