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New Jersey Division of Youth and Family Services v. A.S.

April 16, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.S., DEFENDANT RESPONDENT.
IN THE MATTER OF THE GUARDIANSHIP OF D.D., A MINOR.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-52-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 10, 2008

Before Judges Parrillo, S.L. Reisner and Baxter.

Defendant A.S., the biological mother of four-year-old D.D., appeals from the June 12, 2007 order of the Family Part that terminated her parental rights to her son, pursuant to N.J.S.A. 30:4C-15.1(a). The order in question awarded guardianship of D.D. to the Division of Youth and Family Services (DYFS) so that adoption proceedings could commence. The parental rights of D.D.'s natural father, C.D., were also terminated, but he has not appealed.

On appeal, A.S. does not challenge the trial judge's conclusion that DYFS proved by clear and convincing evidence that she endangered her son's safety, health or development by using cocaine while pregnant and by failing to provide a safe, secure and stable home for her son except during the limited periods when she was residing with a relative. Nor does she challenge the judge's conclusion that DYFS presented sufficient proof that she was unable or unwilling to eliminate the harm facing her son and that delaying permanent placement for him would add to that harm. Finally, she concedes that DYFS made reasonable efforts to provide services geared to helping her correct the circumstances that led to her son's placement outside the home. A.S. argues on appeal only that DYFS failed to prove by clear and convincing evidence that it considered alternatives to termination of parental rights and that termination of parental rights would not cause more harm than good. We affirm.

I.

At trial, DYFS presented the testimony of its caseworker and of a psychologist who performed psychological and bonding assessments. A.S. presented the testimony of V.M., a former foster mother of D.D. The record also contains more than 120 pages of treatment records, assessments, lab reports, psychologist reports, visitation reports and contact sheets describing the caseworker's interactions with A.S. Because A.S. has confined her appeal to a portion of N.J.S.A. 30:4C-15.1(a), we limit our discussion of the record to the facts necessary to address the points she raises.

The testimony at trial established that A.S. admitted to using cocaine while she was pregnant. DYFS caseworker Tiffany Cullen testified to A.S.'s non-compliance with both substance abuse treatment and mental health treatment after D.D. was born. In fact, the record shows that A.S. was terminated from a drug treatment program because she failed to show up after the first appointment.

D.D. has lived in six different placements since his birth on January 25, 2004. First he lived with his mother at the home of his maternal great-grandparents. DYFS removed him in March 2005 and placed in a special provider home because his great-grandparents did not honor their commitment to ensure that D.D. not be left alone with his parents. D.D. remained in the special provider home for only a few weeks and was then placed with an aunt on April 1, 2005. From there, he was placed with a cousin, where he remained until the end of December 2005. For the next six months, he lived with V.M., a licensed foster parent, who also owned and operated a daycare center in which D.D. was enrolled.

V.M. was attentive to D.D.'s needs and contacted DYFS to request various assessments. Based on those assessments, D.D. received occupational and speech therapy. Additionally, because of V.M.'s interaction with D.D., his developmental age progressed to twenty-six months, an increase of nineteen months in the six months that D.D. lived with her.

In the fall of 2005, V.M. told DYFS that she wanted to adopt D.D. According to V.M., a DYFS worker informed her that she was too old to do so because, as a rule of thumb, "you could not be more than thirty-seven years older than the child." Consequently, V.M. and DYFS came to a new agreement: if V.M. could find D.D. a permanent home, then she would be permitted to remain in his life as a de facto grandparent and D.D. would continue to attend her daycare center. At that point, V.M. recommended her friend, A.A., who was both an approved foster parent and a special education teacher. DYFS placed D.D. in A.A.'s care and he has remained there ever since.

Approximately two weeks after D.D. was placed with A.A., V.M. learned that the information DYFS had given her about her age was incorrect. Consequently, she contacted DYFS in an effort to regain custody of D.D. At trial, she testified that she is willing to take D.D. back into her care and raise him into adulthood under either a kinship legal guardianship or as an adoptive parent. She expressed her affection for D.D. and her strong desire to care for him.

In her testimony, Cullen described A.S.'s indifferent attitude toward visitation with her son and her lack of involvement with him on those occasions when she did show up. Cullen testified that A.S. never showed up on time or stayed for the full two hours of visitation. Even worse, there were numerous instances when A.S. did not show up at all. When she failed to appear, she never called in advance to give notice. Recognizing that A.S. had difficulties in arranging transportation, DYFS provided transportation to both A.S. and C.D. in order to facilitate their participation in these scheduled visitations. On the occasions when A.S. failed to show up for her visits with her son, D.D. was already there waiting for her. Ultimately, A.S.'s spotty attendance caused DYFS to require her to call and confirm her scheduled visitation one day in advance.

Cullen's testimony also included a description of her observations of D.D.'s interactions with his current foster mother, A.A. Cullen observed him "eating, smiling and playing with the dog." During the observation, A.A. told Cullen that D.D. becomes "clingy" when she drops him off at daycare and that he will ask "if he's coming home." A.A. also described D.D. as "out of sorts when he comes back from visitation" with his parents.

Psychologist, Dr. Alan Gordon, Ed. D., testified as an expert on behalf of DYFS. Gordon has been performing bonding and psychological evaluations for more than thirty-five years. The psychological evaluation that Gordon performed on A.S. consisted of both his clinical interview and a series of psychological tests. He concluded that A.S. "is an individual who has had a history of drug addiction." Her "drug of choice was cocaine, which she started to use eleven years ago." He commented that although DYFS had directed A.S. to seek treatment for her substance abuse problem, she has "steadfastly refused" to do so. He reviewed various excuses A.S. provided, including her claim that she did not have the money necessary to enter a drug treatment program. He concluded that her refusal to pursue drug treatment when she knew it was a condition of regaining custody of D.D. demonstrated a weak maternal bond. Gordon also pointed out that A.S.'s steadfast refusal to submit urine drug screens "raises very serious questions" about the truthfulness of her claim that she had been drug-free for a year. According to Gordon, A.S. "digs in, feels that she can maintain her stance, and demands that her children*fn1 be returned to her care."

Gordon opined that A.S. had the potential to parent D.D. if she were able to successfully address her addiction and achieve stability in her life. Until such time as she accomplished those tasks, A.S. remained, in Gordon's opinion, "not capable of providing a safe environment for her children."

Gordon's evaluation of bonding between A.S., C.D. and D.D. was conducted on September 25, 2006, when D.D. was two years and eight months old. Gordon did not observe A.S. alone with D.D. During the one-hour bonding evaluation, D.D. was "aggressive" and "hyperactive." A.S. and C.D. were "able to interact with him and made attempts to do so."

Based on the bonding evaluation, Gordon opined that there was "insecure bonding" between D.D. and his ...


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