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New Jersey Division of Youth and Family Services v. D.H.


April 8, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, No. FN-11-174-03.

Per curiam.



Submitted February 27, 2008

Before Judges Wefing and R. B. Coleman.

D.H. appeals from a trial court order entered on April 2, 2007. After reviewing the record in light of the contentions advanced on appeal, we affirm.

D.H. has four children, a daughter who has reached the age of majority, two sons, and a daughter, T.H., now three years old. In June 2003 the New Jersey Division of Youth and Family Services ("DYFS") filed an abuse and neglect complaint with respect to D.H.'s two sons under Docket No. FN-11-174-03. A fact-finding hearing was conducted on July 3, 2003, and the trial court entered an order reflecting D.H.'s admission that she had used cocaine while pregnant and that that constituted abuse and neglect. Those boys reside with relatives and are not the subject of this litigation.

In February 2005, nearly two years after DYFS filed that initial abuse and neglect complaint, D.H. gave birth to T.H. Legal custody of T.H. was placed in DYFS upon her birth, D.H. having been to that point unable to conquer her addiction. That order was entered by the same trial judge who was handling the proceedings with respect to the two older boys and under the same docket number as that abuse and neglect litigation. T.H. was placed in foster care shortly after her birth. She has resided with that same foster family since she was approximately two weeks old. During the course of that litigation, the attorneys and D.H. appeared before that trial judge more than twenty times, and he was fully familiar with D.H., the services that had been offered to her to assist her in overcoming her drug problems, the psychological evaluations that had been prepared which noted her difficulties in controlling her anger, and her aggressive behavior.

In December 2005 the trial court entered a permanency order approving DYFS's plan for reunification between D.H. and T.H., or, if that proved unsuccessful, adoption by T.H.'s foster family. The order noted that termination of D.H.'s parental rights would be an appropriate plan if D.H. did not complete the recommended substance abuse and mental health treatment. At the time of the December hearing, D.H. had still not obtained a stable housing situation and, although she disputed the characterizations contained in certain of the expert reports, her inability to control herself during that hearing lent support to the experts.

In April 2007, the trial court entered the order on appeal, which terminated the abuse and neglect litigation because DYFS had filed a complaint seeking guardianship of T.H. and termination of D.H.'s parental rights.

D.H. argues on appeal that the trial court erred in entering this order. She stresses that she eventually had managed to overcome her drug addiction and had remained sober for almost two years when the trial court conducted its permanency hearing in December 2006. She also complains that by the time this order was entered, DYFS had not yet complied with an earlier order directing it to do an assessment with respect to the possible placement of T.H. with the relatives with whom the boys were residing. Finally, she points to the fact that the trial court did not take any expert testimony prior to entering this order but relied, instead, upon the expert reports that had been prepared during the course of the abuse and neglect litigation.

Having reviewed this record, we decline to reverse the order on appeal. In our judgment, the substance of D.H.'s arguments go to the question whether her parental rights should be terminated, not whether it was appropriate for DYFS to file a termination action at that juncture. T.H., for instance, had been in placement for well beyond the fifteen month period referred to in N.J.S.A. 30:4C-15.

We do not agree with D.H. that DYFS should not have been allowed to file a termination complaint because she had been able to overcome her substance abuse problem which, she says, was the basis for the original proceedings against her. She reads the record too narrowly. It was clear from the outset that her inability to control her anger and her behavior was also a root of the DYFS action.

As we noted, this trial judge was very familiar with her history. Indeed, in the course of his oral opinion he complimented D.H. on the strides she had made, particularly in overcoming her problems with substance abuse and in obtaining her G.E.D. But, as he also noted, those two factors by themselves, did not establish that at that point D.H. had the ability to parent and to nurture T.H.

Finally, we note that our affirmance of the order under appeal is in no way a forecast of the outcome of the termination proceedings. DYFS will be required to establish, by clear and convincing evidence, the required statutory elements. That the trial court permitted the termination of this abuse and neglect litigation does not in any way guarantee that DYFS will be successful in that regard. D.H. may well, in the interim, have made significant strides, such that termination would be unwarranted.

The order under review is affirmed.


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