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New Jersey Division of Youth and Family Services v. K.W.

April 10, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-52-07.

Per curiam.


Argued February 26, 2008

Before Judges Winkelstein and Yannotti.

M.N.B. and K.W. appeal from an order entered on June 14, 2007, which terminated their parental rights to M.B.W. and K.L.B.W. For the reasons that follow, we affirm.


M.B.W. is a male who was born on November 16, 1993. K.L.B.W. also is a male. He was born on September 17, 1994. The Division became involved with the family on September 19, 1994. The hospital reported that M.N.B. had not obtained prenatal care and she had been using cocaine two weeks prior to K.L.B.W.'s birth. The hospital also reported that it was concerned because it could not confirm where M.N.B. intended to reside with baby.

The Division investigated the matter and was informed that M.N.B. and the children would be living with her mother. The Division also learned that M.N.B. had recently completed a drug rehabilitation program. The Division received another referral from the hospital on September 23, 1994. The Division was told that K.L.M.B. had tested positive for cocaine; M.N.B. had not made follow-up appointments for the children; and M.N.B. had not signed up for the hospital's drug program.

On October 4, 1994, a Division caseworker met with M.N.B. She admitted that she used cocaine twice since August 1994. M.N.B. denied that she was addicted to drugs and said that she intended to begin a drug treatment program the following day. M.N.B. also reported that K.W. was the father of the boys but he was "not around." Because M.N.B. was going to start the drug treatment program and because M.N.B.'s mother had agreed to assist in caring for the children, the Division closed its file on the matter.

In May 1995, M.N.B. contacted the Division and reported that she and the children were living with her mother. M.N.B. said that she was separated from K.W. and at times, he had been intoxicated when he came to visit the children. M.N.B. also stated that she and K.W. had gotten into a physical altercation in the children's presence. The Division investigated the matter and determined that the incident had occurred as M.N.B. had reported.

M.N.B. and her mother agreed to a care plan for the children. M.N.B., her mother, and K.W. also agreed that M.N.B. would not be present when K.W. visited the children, and M.N.B.'s mother would supervise K.W.'s visits. In addition, M.N.B. informed the Division that she was seeking her own apartment and had applied for Section 8 housing assistance. The Division closed its file on the matter.

The Division had no involvement with the family until May 2004, when it received a referral from K.L.B.W.'s school, the Montgomery Academy School. K.L.B.W. had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and classified as learning disabled. K.L.B.W. had behavioral problems in public school and had been enrolled in Montgomery since September 2003. Montgomery reported to the Division that K.L.B.W. appeared angry and there had been no responses to notes that the school had sent to the home. Moreover, the school was concerned that K.L.B.W. had not been taking his medication and he had not attended therapy.

On May 12, 2004, a Division caseworker met with M.N.B., who reported that she attended a drug treatment program in 1991 because of her addiction to cocaine. M.N.B. told the worker that she was a recovering alcoholic and had maintained sobriety for the previous twelve years. M.N.B. stated that K.W. was supposed to visit the children every two weeks but he did not. She also said that K.W. was behind on his child support payments. M.N.B. signed a care plan, in which she agreed to provide the children with a safe and stable home and ensure that they had appropriate medical care and supervision. The Division closed its file on the case.

About eleven months later, the Division received a report that M.N.B. was homeless and may have substance abuse and mental health problems. One of the Division's caseworkers met with M.N.B. She said that she had been evicted from her apartment for non-payment of rent. She had placed the children with Mr. and Ms. S., and they had agreed to care for the boys temporarily.

On April 21, 2005, one of the Division's workers contacted K.W. to discuss his plans for the children. K.W. stated that the boys were doing well with Mr. and Ms. S. and he thought they should stay with them for the remainder of the school year. K.W. also said that M.N.B. was unstable and that she had problems with cocaine in the past. M.N.B. consented to the children's placement into foster care for fifteen days. M.N.B. was evaluated for substance abuse.

On May 12, 2005, the evaluation was completed. Four additional drug screens were recommended to rule out substance abuse. A psychological evaluation was recommended, as well as attendance at Alcoholic Anonymous meetings three times a week for ninety days. Urine screens were conducted on May 2, 2005; May 23, 2005; June 17, 2005; and the results were negative.

Ms. S. contacted the Division on May 23, 2005, and reported that M.N.B. was "causing complete chaos in her home." Ms. S. asserted that she agreed to care for the children because her son knew one of the boys and she did not want them "to be thrown out on the streets." Ms. S. also asserted that the children had not been much trouble but M.N.B. called ten times a day to speak with them.

Ms. S. said that M.N.B. left her harassing messages and treated her badly. She added that, at times, M.N.B. would arrive at her home unannounced. Ms. S. wanted the Division to pre-arrange and schedule M.N.B.'s visits. She also wanted M.N.B. to stop making harassing phone calls and to make calls to the children once a day at a specified time.

On June 9, 2005, the court entered an order providing that the children would remain in the Division's custody, care and supervision, and they would continue to reside with Mr. and Ms. S. The court ordered M.N.B. and K.W. to attend psychological evaluations; permitted M.N.B. to have supervised visitation; and limited M.N.B.'s phone contact with the children to specified times. on July 1 and 6, 2005, M.N.B. was evaluated by Jennifer Rosencrance, an examiner at the Center for Evaluation and Counseling. In a report concerning that evaluation dated July 20, 2005, that was written under the supervision of Dr. Michael J. Fiore, Rosencrance stated that M.N.B. had denied that she was homeless. M.N.B. asserted that she met K.W. at a party in 1989 and they started dating. According to M.N.B., she and K.W. were together for awhile but K.W. did not want to get married. M.N.B. said that K.W. was "a loner" and he was "better off as a single person."

M.N.B. denied that she had a history of mental health treatment or hospitalizations. She admitted, however, that in the past, she had been treated for substance abuse. M.N.B. asserted that she used cocaine and smoked marijuana as a teenager but she had not done so after her treatment. M.N.B. also said that "the cocaine [had] helped [her] deal with [her] problems and issues." She stated that the Division "has all clean urines."

Rosencrance wrote that M.N.B. appeared "defensive and evasive." According to Rosencrance, M.N.B. had "little to no insight into how her actions affect her children." M.N.B. minimized her past substance abuse history and K.L.B.W.'s problem with ADHD. Rosencrance suggested that M.N.B. may be suffering from a major affective disorder, and the cocaine use could have "masked her symptoms and further destabilized her mood."

Rosencrance concluded that M.N.B. was not capable of caring for the children at that time. According to Rosencrance, M.N.B. did not have appropriate housing and it was questionable whether she could support the children financially. Rosencrance noted her concern with M.N.B.'s "presentation" during the evaluation, as well as the reports of her erratic and "emotionally dyscontrolled behavior."

Rosencrance wrote that M.N.B. was in need of a psychiatric evaluation and follow-up care. She stated that M.N.B. also was in need of substance abuse treatment. She additionally stated that M.N.B. would benefit from anger management and psychotherapy "to address issues of emotional dyscontrol and lifestyle instability."

The court conducted a case management review on August 25, 2005. K.W. had notice of the proceeding but he did not attend. The court continued the children in the Division's custody and ordered that they remain with Mr. and Ms. S. The court also continued M.N.B.'s supervised visitation with the children.

In September 2005, Dr. Christine D. Heffner performed a psychiatric evaluation of M.N.B. Heffner diagnosed cocaine and marijuana abuse, in remission as reported by M.N.B.; rule out mood disorder, not otherwise specified (NOS); adjustment disorder; rule out psychosis, NOS; and personality disorder, NOS, with antisocial, paranoid and schizotypal traits.

In her report, Heffner stated that it was difficult to "fully come to a conclusive diagnosis [because M.N.B.] is a poor historian and seemingly very guarded." M.N.B. was asked to return in a week so that Heffner could collect additional information and re-evaluate her mental status. M.N.B. returned on October 18, 2005; however, Heffner's diagnosis remained substantially the same. Heffner recommended that M.N.B. participate in individual therapy.

The court conducted a fact-finding hearing on October 20, 2005, and entered an order on that date in which it found that M.N.B. had neglected the children through her inability to provide financial support and housing for the children, thereby putting them at risk. The court entered another order on October 20, 2005, which provided that the children would remain in the Division's custody and continue to reside with Mr. and Ms. S.

The court's order additionally required that M.N.B. attend counseling; continued M.N.B.'s supervised visits with the children; allowed K.W. to have "liberal and reasonable unsupervised" visitation; provided that the children could spend every other weekend with their paternal grandmother if she or K.W. were present at all times; precluded M.N.B. from making harassing phone calls to the foster family; limited M.N.B.'s phone calls to the children; and directed M.N.B. to make an effort to maintain full-time employment.

In December 2005, Mr. and Ms. S. informed the Division that, since the October 20, 2005 hearing, K.W. had only visited the children three times. They expressed a willingness to adopt the children if that was possible. On December 14, 2005, K.W. and his mother signed a care plan, which allowed the children to visit them.

The court conducted a compliance review hearing on January 19, 2006. Although K.W. attended that proceeding, M.N.B. did not appear. The court ordered that the children remain in the Division's custody and continue to reside with the foster parents. M.N.B. was ordered to attend neuro-psychological testing; attend counseling; and make an effort to maintain full-time employment. The court also directed K.W. to cooperate with the Division.

On March 24, 2006, the Division sent a letter to M.N.B. in which it noted that the children had been in foster care for eleven months. The Division stated in the letter that it wanted to know about M.N.B.'s permanency plan for the children. The Division noted that M.N.B. had not visited the children since November 16, 2005.

The Division further noted that the court had ordered M.N.B. to undergo a neuro-psychological evaluation. That evaluation had been scheduled for December 19, 2005, but M.N.B. had not attended and did not call to re-schedule an appointment. In addition, the Division stated that the court had ordered M.N.B. to attend anger management classes, individual psychotherapy, and substance abuse treatment but she had not yet attended any of these services. The Division advised M.N.B. that it would be seeking the termination of her parental rights to the children at the next court date.

On March 28, 2006, the Division sent a letter to K.W. and asked to be informed of his permanency plan for the children. In this letter, the Division stated that it had attempted to contact him but had been unable to do so. The Division asserted that K.W. had been attending regular weekly visits at the foster home, but it needed to be informed of his plan for the children. The Division said that unless it heard from K.W., it would move forward with its plan to seek the termination of his parental rights at the next court date.

The court conducted a permanency hearing on April 6, 2006. The court rejected the Division's plan for termination of M.N.B.'s and K.W.'s parental rights. The court directed the Division to submit a new permanency plan within sixty days. The court ordered that the children remain in the Division's custody and continue to reside with Mr. and Ms. S. M.N.B. again was ordered to attend counseling, a neuro-psychological evaluation, and a substance abuse evaluation. M.N.B.'s weekly supervised visitation was continued. K.W. again was ordered to cooperate with the Division, and he was directed to permit the Division's caseworker to visit his home.

Another permanency hearing took place on May 18, 2006. The court accepted the Division's plan for reunification of the children with K.W. and ordered that it take place by July 1, 2006. The judge found that "[t]he Division's [permanency] plan is appropriate because [K.W.] can take care of his children and will become their primary caretaker along with the support of [his] mother."

The court's order provided, among other things, that in the meantime, K.W. would have liberal and unsupervised visitation. The order also required that K.W. make "definitive arrangements" for the boys' schooling in September 2006. The judge ordered M.N.B. to attend counseling, neuro-psychological testing, and substance abuse treatment.

On June 8, 2006, one of the Division's caseworkers contacted K.W. to discuss his arrangements for reunification with the children. K.W. informed the caseworker that he had not yet purchased beds for the children, and he did not have information regarding their schools. K.W. told the worker that he would have all of the arrangements completed by the following week.

A caseworker placed a phone call to K.W. on June 23, 2006 to discuss reunification. There was no answer. The Division followed up with a letter reminding K.W. that he said he would make the necessary arrangements for reunification with the children but he had not contacted the Division to confirm that those arrangements had been made.

At about this time, K.L.B.W. was hospitalized after he told his therapist that he was thinking of hurting himself or another person. At the hospital, K.L.B.W. said that he wanted to kill himself or kill his foster mother. The child was hospitalized from June 27 to 30. He was diagnosed with major depression.

A report of a psychiatric evaluation of K.L.B.W. that was conducted on July 11, 2006, noted that the child had "a long history of depressive symptoms with suicidal ideation and a longstanding history of ADHD symptomology." The evaluation also noted that K.L.B.W. previously had been hospitalized in December 2002 with a diagnosis of major depression and rule out bipolar disorder. The report recommended that K.L.B.W. have individual therapy two times a week, rather than once a week, and that his medication be continued.

A caseworker contacted K.W. on July 3, 2006. K.W. advised that he was going to move to another apartment and he was not ready to take responsibility for the children at the time. According to the case notes, K.W. said that he had "some car trouble" but he "would work on the tasks" in the coming week. K.W. said that he would contact the Division "once he [had] everything ready[.]"

The Division referred M.N.B. for further psychological and psychiatric evaluations at the Family Enrichment Program (FEP) at Morristown Memorial Hospital. She also was referred for another substance abuse evaluation.

The latter evaluation was completed on August 4, 2006. The evaluator noted that on July 31, 2006, M.N.B. had tested positive for cocaine. The evaluator also suggested that M.N.B. participate in an intensive outpatient drug treatment program. At a meeting at the Division's office on August 4, 2006, M.N.B. was informed of the positive drug screen. M.N.B. stated that she had been at ...

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