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Division of Youth and Family Services v. T.Z.

July 11, 2007

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
T.Z., JR., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF M.Z. AND T.R., MINORS.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-51-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 16, 2007

Before Judges Parker and Messano.

Defendant T.Z., Jr., appeals from an order entered on June 22, 2006 dismissing the complaint for abuse and neglect and allowing V.R., the mother of defendant's children, to move to Rhode Island with the children. Defendant contends that the trial court erred by placing the children, M.Z. born on November 19, 1990, and T.R. born on May 21, 1992, with V.R. because she abused and neglected them. We affirm.

Between April 2001 and March 2004, DYFS received eighteen referrals regarding defendant for lack of supervision, unclean and unsafe housing, alcohol abuse, medical neglect, physical abuse, domestic violence and abandonment of the children. Fourteen of the referrals were substantiated by DYFS. The last referral was made in September 2004 by a doctor at the Center for Children's Support, who reported that a twelve-year-old girl stated she had sexual relations with defendant. During an investigation by the Prosecutor's Office, defendant admitted sexual contact with the twelve-year-old girl. He was arrested and charged with aggravated sexual assault. Defendant signed a fifteen-day consent for placement of the children with their paternal grandfather. V.R.'s whereabouts were unknown at the time. She had left the family because of defendant's abuse and defendant refused to let her visit the children. He had advised the children's school that V.R. was prohibited from contacting the school or the children.

At a fact finding hearing on January 25, 2005, Stephanie Lex, a DYFS case manager testified with respect to the extensive history of "unsafe and unclean housing, alcohol abuse, medical neglect, physical abuse, domestic violence and abandonment" of the children by defendant. At the conclusion of the hearing, the court found that defendant had abused and neglected the children based upon his failure to provide adequate housing. Defendant remained incarcerated pending trial on the charges of sexually assaulting the twelve-year-old girl.*fn1 The court considered defendant's indefinite incarceration a substantial factor in his inability "to provide parental care or provide for the children's needs." The court ordered that the children remain under DYFS's supervision; that T.R. remain with his paternal grandfather and M.Z. with his foster family. Although the court made no findings with respect to V.R., it ordered that she not visit with the children until she completed the psychological evaluation and her contact with the children was deemed appropriate by the children's therapist. An interstate evaluation of V.R.'s home in Rhode Island was also ordered. On September 6, 2005, DYFS proposed a permanency plan, recommending that the children be returned to "their mother in her care and placement." By this time, both children had been removed from their prior placements to the Deveaurex Family Teaching Home Program because their behavioral problems were too intense for regular foster families. Rosemary Ortiz, a DYFS caseworker, testified that the children were willing to address family issues and reasons why their mother left home. The children expressed their desire to visit their mother in Rhode Island, and T.Z. specifically shared his hope to be reunited with V.R. there. While defendant was incarcerated, he had visitation with the children for a period of time. On August 3, 2006, however, DYFS requested that the visitation stop because defendant had conversations with the children regarding the case. Moreover, after visits with their father, the children exhibited behavior problems.

Ortiz further testified that termination of defendant's parental rights and reunification of the children with their mother was appropriate. At that time, DYFS was only awaiting completion of the evaluation of V.R.'s home to complete the reunification plan.

The dispositional hearing was conducted on September 6 and September 30, 2005. Defendant testified that V.R. left and returned to him several times until she left permanently in 1995. She usually took the children with her when she left, but in 1995 the children were in her mother's custody. While V.R. was gone, however, defendant's sister obtained custody of the boys and thereafter defendant resumed custody of them. Defendant acknowledged that if he was convicted of the sexual assault charges, he would not be an appropriate caregiver for the children, and that, if V.R. demonstrated a commitment to the children, the court should decide whether she was an appropriate custodian for them.

On October 26, 2005, a permanency order was entered allowing the children to return to their mother's custody once the interstate home evaluation was completed. The order further directed that the mother and children continue therapy "so that they may transition into [their] mother's home." The trial court stated that it overrule[d] the objections to the permanency plan by the defendant . . . . The mother's failure to live with the children in the past does not preclude the mother from placement, especially in light of professional opinion(s) that she is an appropriate caretaker and guardian. The father's argument that he does have a bond with the children does not in any way preclude the children from achieving permanency by way of placement with the biological mother. [The] children have been in placement for over 13 months and are deserving of permanency.

In December 2005, the children were reunited with V.R. in Rhode Island, although the children remained in DYFS's legal custody. On June 22, 2006, the trial court held a final dispositional hearing in which it summarized its findings of fact and conclusions:

The matter was scheduled to return to court today. I did receive a court report for purposes of today's hearing, indicating that the family -- the children, their mother and ...


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