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Division of Youth and Family Services v. B.W.

October 1, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-03-06.

Per curiam.



Submitted September 17, 2007

Before Judges Parrillo and Graves.

B.W., the birth mother of T.S.W., born December 8, 2001, and J.J.W, born February 16, 2003, appeals from a judgment entered in the Family Part terminating her parental rights and granting guardianship of these two minor children to the Division of Youth and Family Services (DYFS). Because we find the trial court's findings supported by competent, clear and convincing evidence, we affirm.

The relevant facts are as follows. B.W. is the thirty-three-year-old unmarried mother of nine children, the youngest of whom is deceased, having been born medically fragile and exposed to drugs in utero. As of January 31, 2006, the six eldest had been accepted into kinship legal guardianship with maternal relatives. The remaining two children, T.S.W. and J.J.W. -- the subjects of this litigation -- are developmentally delayed with special needs and have been in DYFS' care since September 9, 2004, following both B.W.'s eviction from transitional housing and consequent homelessness, and the agency's investigation into complaints of lack of supervision, failure to provide medical care, and ongoing truancy.

Throughout its involvement with this family, DYFS offered numerous services to B.W., including drug and alcohol counseling and treatment, psychological evaluations, transitional housing assistance, assistance in paying utility bills, and transportation to visits. B.W., however, cancelled or failed to appear for several scheduled services and evaluations, and even failed to attend court hearings on a consistent basis. She continued to have housing problems and in fact lacked stable housing for the eight months prior to the termination trial. An admitted drug user since age twenty-seven, B.W. was essentially non-compliant with the SODAT drug treatment program to which she was referred by DYFS. Urinalysis on January 27, 2005 tested positive for drugs, as did a test administered on March 24, 2005, and B.W. admitted using cocaine as recently as May 2006, just months before the termination hearing. Consequently, as of July 25, 2005, the Family Part judge relieved DYFS of its obligation to provide services to B.W., although agency services were subsequently reinstated. And, as the trial judge found, it was only on the eve of trial that B.W. attempted to avail herself of agency services. In the meantime, in the year since their removal from B.W.'s custody, both T.S.W. and J.J.W., together in foster care, were making gains and were reported to be thriving.

All expert evaluations, including those completed on B.W.'s behalf, consistently and uniformly concluded that B.W. was incapable of parenting the two boys, especially given their special needs; that they have no real relationship with B.W.; and instead have bonded with their foster parents. According to Dr. James Loving, the psychologist who performed the first evaluation for DYFS on October 13, 2004, "[B.W.] has a severe and lengthy history of failing to provide independent, active parenting . . . ." Dr. Loving concluded that B.W.'s "[t]reatment would need to be long-term in nature, and [her] prognosis for making significant change is poor."

Dr. Anthony Giordano, DYFS' expert who performed a psychological evaluation on March 8, 2006, essentially concurred, concluding that:

[B.W.] did not have then and does not have now the parental skills and insight needed to properly care for her young children. In addition, her lack of judgment in having 8 children without a realistic means to support them with basic needs constitutes neglect.

Dr. Giordano also preformed a bonding evaluation in which he found no bond between B.W. and the two boys, T.S.W. and J.J.W., who, in contrast, "are strongly attached to their current caregivers and will suffer serious and enduring harm if not allowed to remain with them."

Most notably, Dr. David Bogacki, B.W.'s own expert who conducted both psychological and bonding evaluations, agreed with the conclusions of DYFS' experts. His diagnosis of B.W. was "Cocaine Abuse in Partial Sustained Remission; Dysthymic Disorder; Personality Disorder, Not Otherwise Specified with Dependent and Schizoid Traits." Dr. Bogacki found that:

[B.W.] has rudimentary understanding of parenting skills. However she did not demonstrate either knowledge of parenting skills nor demonstrate parenting ability in the bonding evaluation to indicate that she would not continue to have some difficulty with ...

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