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Division of Youth and Family Services v. E.D.

May 7, 2008

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
E.D., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF J.J., A MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FG 09-282-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 11, 2008

Before Judges Skillman, Yannotti and LeWinn.

E.D. (defendant) is the natural mother of J.J., born January 6, 2004.*fn1 Defendant appeals the order of the Family Part, entered on May 18, 2007, terminating her parental rights to the child*fn2, and raises the following issues:

DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE E.D.'S PARENTAL RIGHTS IN ORDER TO PROTECT HER SON'S BEST INTERESTS.

A. The Child's Safety, Health and Welfare Have Not been Endangered by His Relationship With His Mother, Nor Will the Continuation of The Relationship Endanger Him.

B. E.D. Is Willing and Able to Eliminate The Harm Facing Her Son and Is Able And Willing to Provide a Safe and Stable Home for Him.

C. DYFS Failed to Make Reasonable Efforts To Provide Services to Help E.D. Correct the Circumstances Which led to Her Son's Placement Outside the Home and the Trial Court Failed to Adequately Consider Alternatives to Termination of Parental Rights.

D. Termination Will Do More Harm Than Good

Upon our review of the record, we conclude that the trial court erred by finding that the Division of Youth and Family Services (DYFS) established by clear and convincing evidence that it had considered alternatives to termination of E.D.'s parental rights, specifically the possibility of appointing J.J.'s maternal grandparents as his kinship legal guardians (KLG). We therefore reverse the order terminating parental rights and remand for further proceedings. We briefly review the pertinent factual background in this case.

DYFS became involved with J.J. on February 13, 2004, upon a referral from the infant's pediatrician, Dr. Daxa Surti. On that date, Dr. Surti's examination of J.J. revealed a healing fracture in the infant's left femur and another fracture in the right leg. Prior to that date, defendant had missed two scheduled appointments for J.J.'s checkup with the pediatrician. Dr. Surti concluded the fractures were "child abuse indicators" and he contacted DYFS. In his referral, Dr. Surti also reported defendant's two prior missed appointments.

J.J. was hospitalized from February 13 through March 2, 2004. On February 25, 2004, defendant signed an informed consent to foster care placement for six months and identified her parents as relatives "who may be a viable placement resource for the child." DYFS then filed an order to show cause and complaint for custody, and J.J. was placed in foster care.

On March 1, 2004, defendant was arrested on an outstanding bench warrant for possession of twenty-five pounds of marijuana. This arrest led to a two-year prison term during which defendant acquired her high school equivalency diploma, participated in group therapy and completed a parenting course. She was released from prison in October 2006.

In January 2005, following several unsuccessful foster care placements, J.J. was placed with his maternal grandparents, H.J. and V.J. In April 2005, the court accepted defendant's voluntary surrender of J.J. to her mother, H.J. J.J. ...


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