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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 being able to be the primary caretaker for the two young children.

Consequently, the expert concluded that B.W. was incapable of parenting the children. Moreover, Dr. Bogacki's bonding evaluation revealed no bond between B.W. and the two boys; "no discernable evidence of emotional attachment[]"; and "no evidence to suggest that if parental rights were terminated that the children would suffer from any degree of emotional harm."

B.W. testified on her own behalf. At the time of trial, B.W. was living with an elderly man, Walter Kenneth Michael, a long-time family friend whom she said could assist in caring for her two children. She was also attending a narcotics anonymous program and agreed to now accept agency services for her depression and drug problems.

At the conclusion of evidence, the trial judge rendered an oral opinion terminating the parental rights of B.W. to the two children, reasoning in pertinent part:

I'm satisfied that [B.W.] has historically been unable and unwilling to raise these boys based on her actual actions or lack of activity or actions. Now I find by clear and convincing evidence that she is unable to do so, although she is willing to do so.

I further find based on the testimony and the reports to which I have made reference that she actually lacks the insight to do so. She simply cannot provide a safe and stable home to these two boys and will not be able to do so in the near future.

They currently have a safe and stable home. One would believe and I find that to separate them from that safe and stable home would cause them serious emotional harm and based on that I am going to terminate the parental rights of . . . [B.W.] . . . because I am satisfied that without that it would do more harm than good. And the application of the Division to terminate the parental rights is granted by the clear and convincing evidence. I'm satisfied that each of the four prongs [of N.J.S.A. 30:4C-15.1(a)] has been met.

Contrary to B.W.'s contentions on appeal, we defer to the Family Part judge's findings because they are well supported by substantial, competent, credible evidence in the record. See In re Guardianship of DMH, 161 N.J. 365, 382 (1999); Cesare v. Cesare, 154 N.J. 394, 413 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). In light of those findings, and substantially for the reasons stated in the trial judge's oral opinion of November 15, 2006, we agree that the best interests of T.S.W. and J.J.W. support a termination of appellant's parental rights. N.J.S.A. 30:4C-15.1(a).

We are further satisfied that the reports of the three experts were properly admitted through the testimony of DYFS' caseworker. In the first place, there was no objection from B.W.'s counsel, but instead acquiescence in the admissibility of this evidence. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973). Second, reports of agency staff or affiliated medical and psychological consultants, prepared from their own first-hand knowledge of the case, are admissible as prima facie evidence. R. 5:12-4(d); see also N.J. Div. of Youth and Fam. Servs. v. B.H., 391 N.J. Super. 322, 349-50 (App. Div.), certif. denied, 192 N.J. 296 (2007); N.J. Div. of Youth and Fam. Servs. v. J.T., 354 N.J. Super. 407, 414 (App. Div. 2002), certif. denied, 175 N.J. 432 (2003); In re Guardianship of Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969); N.J.S.A. 9:6-8.46(a)(3); N.J.R.E. 803(c)(6). To be sure, such reports are subject to rebuttal. The parent may offer evidence contradicting any statements present in such reports, and the trier of fact may, in its discretion, call for live testimony on any point. B.H., supra, 391 N.J. Super. at 350 (quoting Cope, supra, 106 N.J. Super. at 343-44).

Here, of course, B.W. offered no rebuttal in kind and in fact her expert, Dr. Bogacki, agreed with the conclusions of Drs. Loving and Giordano in both their psychological and bonding evaluations of the parent. Under the circumstances, the expert reports were properly admitted and constituted competent evidence supporting the trial judge's factfinding.



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