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New Jersey Division of Youth and Family Services v. T.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 19, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
T.M., DEFENDANT-APPELLANT.
IN THE MATTER OF L.L. AND R.L., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-103-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2008

Before Judges Wefing, Parker and LeWinn.

Defendant T.M. appeals from a final order entered on June 15, 2008 dismissing the Title 9 abuse and neglect complaint and authorizing the Division of Youth and Family Services (DYFS) to file a Title 30 guardianship complaint. We reverse and remand.

Defendant is the mother of L.L. and R.L., now nine and eleven years old. She has four older children who are not the subject of this action.*fn1 Defendant has been involved with DYFS since July 1994, when it was reported that she and her newborn child, S.M., had both tested positive for cocaine. Defendant admitted to using cocaine and received treatment. In January 1995, however, defendant was charged with possession of cocaine and was again provided with treatment. In 2002, DYFS received two additional referrals and S.M. was removed from defendant's custody.

With respect to the children involved in this complaint, in 2004, DYFS received a report that defendant smelled of alcohol when she dropped L.L. off at school. On November 6, 2006, DYFS received a referral that defendant was intoxicated and not properly supervising the children. She agreed to complete a substance abuse evaluation.

On November 28, 2006, DYFS received a report that the children were left home alone. When the caseworker went to the Franklin Motel in Seaside Heights, where the family was staying, she noted that defendant's speech was slurred and she smelled strongly of alcohol. The caseworker observed that defendant was staggering and confused about the children's whereabouts, although they had not yet come home from school. Defendant was arrested the same day on outstanding warrants and DYFS took custody of the children without a court order. The following day, November 29, 2006, DYFS served notice of the removal without a court order, pursuant to N.J.S.A. 9:6-8 and -8.30. The Title 9 verified complaint for custody was filed on November 30, 2006.

The children were placed with their older brother and his wife in Pennsylvania. Defendant moved from Ocean County to northern New Jersey in order to have greater access to transportation to and from services. DYFS claimed it attempted to coordinate services for her, including substance abuse treatment, parenting skills classes and a psychological evaluation. DYFS did not, however, transfer the case to an office in defendant's new county of residence to better coordinate services, and there was a nine-month gap from the time the children were removed from defendant's custody until services were begun. DYFS did provide defendant with bus passes for transportation to and from service providers because she does not drive.

On April 12, 2007, an order was entered after a fact finding hearing at which DYFS moved three exhibits into evidence: a notice of placement for each child and the caseworker's handwritten "substantiation" of neglect. We have not been provided with a transcript of that hearing and have only the court's notation on the order that the "mother was found intoxicated and incapable of caring for her children. Mother was arrested for warrants at the scene."

After that hearing, DYFS claimed it attempted to contact defendant on many occasions but the caseworker's phone calls were not returned. DYFS also represented that it offered defendant the opportunity to visit with the children in Pennsylvania and claimed she did not take advantage of that opportunity. DYFS neglected to mention, however, that the bus passes it provided were only for New Jersey and DYFS failed to provide any means of transportation, such as a bus ticket, for defendant to visit the children in Pennsylvania.

On June 13, 2007, a permanency hearing was held. No witnesses were sworn, no testimony was taken and no documents were admitted into evidence, except a DYFS report indicating that services were offered to defendant and that she did not take advantage of them. The report further indicated that the children were placed with their older brother and his family in Pennsylvania and that defendant was authorized to visit them. Again, however, DYFS failed to note that defendant had no means of transportation to visit the children in Pennsylvania. There was also no mention of where the services were provided for defendant and whether she could reach them by bus. DYFS reported, however, that the children's older brother and his wife indicated their desire to adopt the children.

Although defendant was not present for the November 13, 2006 permanency hearing, her counsel advised the court that defendant had waited nine months before DYFS scheduled any services for her. Counsel represented that defendant tried to initiate her own treatment but DYFS rejected the names of doctors defendant provided who could offer substance abuse treatment, parenting training and psychological counseling. DYFS did not rebut the representations, nor did it offer any evidence that reasonable efforts had been made to provide services and transportation, or to assist defendant in reuniting with her children. The law guardian noted that the children missed their mother and wanted to live with her. Based upon little more than the representations of counsel, the court entered a permanency order, allowing a "dual track plan" for sixty days; that is, DYFS had to proceed on the abuse and neglect track at the same time it moved forward on termination of parental rights. After sixty days, the custody complaint would be dismissed and the guardianship complaint would be filed.

On January 15, 2008, sixty days after the permanency hearing, DYFS filed the Title 30 guardianship complaint for termination of parental rights. The Title 9 abuse and neglect complaint was dismissed. Although defendant was present at the January 15 hearing, she was not represented by counsel.*fn2

Nevertheless, the court had defendant sworn and she testified that she had been hospitalized for nine weeks for problems with her lungs but had managed to arrange group and individual counseling for herself at the Cope Center. She explained that she did not keep an appointment for a psychological evaluation because the DYFS caseworker did not pick her up as previously arranged and told her at the last minute to take the bus. Defendant's testimony with respect to the children indicated that she was fully aware of their current status, particularly R.L.'s problems in school.

DYFS did not dispute defendant's testimony, nor did the Deputy Attorney General (DAG) representing DYFS cross-examine defendant. After that hearing, the court entered the January 15, 2008 order dismissing the Title 9 complaint and authorizing DYFS to file the Title 30 complaint. It is from that order that defendant appeals and argues:

POINT ONE

THE COURT ERRED IN APPROVING THE DIVISION'S PERMANENCY PLAN ON NOVEMBER 13, 2007, BECAUSE THE DIVISION OFFERED NO TESTIMONY FROM ANYONE ON ANY ISSUE, AND SO THERE WAS NO OPPORTUNITY TO CROSS EXAMINE, THEREFORE THE DIVISION DID NOT SHOW IT MADE REASONABLE EFFORTS TO PROVIDE SERVICES OR TO REUNITE THE CHILDREN WITH THEIR MOTHER

POINT TWO

THE TRIAL COURT ERRED BY FINDING THAT THE DIVISION'S PERMANENCY PLAN WAS ADEQUATE BECAUSE AN ALTERNATIVE TO TERMINATION, SPECIFICALLY KINSHIP LEGAL GUARDIANSHIP, WAS NEVER CONSIDERED; THE CASE SHOULD BE REMANDED FOR TESTIMONY CONCERNING THIS AND OTHER ALTERNATIVES

POINT THREE

THE TRIAL COURT ERRED BY ENTERING THE PERMANENCY ORDER AND THE ORDER TO DISMESS [SIC] THE FN LITIGATION BECAUSE THE DEFENDANT MOTHER'S ATTORNEY WAS NOT PRESENT AT THE FINAL HEARING, AND SO THE LITIGANT WAS NOT PROPERLY REPRESENTED (NOT RAISED BELOW)

Title 9 actions filed by DYFS pursuant to N.J.S.A. 9:6-8.21 are commonly referred to as abuse and neglect cases. Ordinarily, DYFS must "make reasonable efforts, prior to placement [of the children], to preserve the family in order to prevent the need for removing the child from his home. After placement, the

[D]ivision shall make reasonable efforts to make it possible for the child to safely return to his home." N.J.S.A. 30:4C-11.1b. In some cases, however, DYFS is not required to make reasonable efforts to reunify the child with a parent after the child has been removed, if a court determines that:

a. The parent has subjected the child to aggravated circumstances of abuse, neglect, cruelty or abandonment;

b. The parent has been convicted of murder, aggravated manslaughter or manslaughter of another child of the parent; aiding or abetting, attempting, conspiring or soliciting to commit murder, aggravated manslaughter or manslaughter of the child or another child of the parent; committing or attempting to commit an assault that resulted, or could have resulted, in significant bodily injury to the child or another child of the parent; or committing a similarly serious criminal act which resulted, or could have resulted, in the death or of significant bodily injury to the child or another child of the parent; or

c. The rights of the parent to another of the parent's children have been involuntarily terminated.

When determining whether reasonable efforts are required to reunify the child with the parent, the health and safety of the child and the child's need for permanency shall be of paramount concern to the court.

A permanency plan for the child may be established at the same hearing at which the court determines that reasonable efforts are not required to reunify the child with the parent, if the hearing meets all of the requirements of a permanency hearing pursuant to [N.J.S.A. 30:4C-61.2]. [N.J.S.A. 30:4C-11.3].

"[T]he court shall review the Division's permanency plan and make a determination after considering various sources of information following a hearing held 'no later than twelve months after the child has been in placement.'" N.J. Div. of Youth & Family Servs. v. S.A., 388 N.J. Super. 324, 333-34 (Ch. Div. 2005) (quoting N.J.S.A. 30:4C-61.2a(2) (emphasis added). Although "[t]he phrase 'permanent placement' is not synonymous with the phrase 'termination of parental rights,'" the court must review various sources of information in order to determine whether the permanency plan is in the best interests of the children. Id. at 335-36 (quoting In re E.M.B., 348 N.J. Super. 31, 48 (App. Div. 2002). The "best interests" standard requires that the court "engage in 'the meticulous fact finding required in custody cases.'" Id. at 336 (quoting N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 528 (App. Div. 2003)). DYFS must prove abuse or neglect by a preponderance of the evidence. N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557; N.J.S.A. 9:6-8.46.

Here, the children were removed on an emergent basis when defendant was arrested on outstanding warrants, but in the record before us there was never a "meticulous fact finding," nor was there a finding that defendant met the criteria set forth in N.J.S.A. 30:4C-11.3, relieving DYFS of its responsibility to provide reasonable efforts to reunify the child with their mother. Nevertheless, on November 13, 2007, the permanency hearing was held at which only termination of parental rights was considered.

As we have discussed previously, DYFS failed to provide transportation for defendant to visit the children in Pennsylvania. The law guardian represented to the court that the children wanted to continue seeing and hearing from defendant and noted that R.L., in particular, gets upset when defendant is unable to visit. The law guardian further represented that R.L. "seems to appreciate his situation and he's a bit concerned that he will never see his mother again if he's adopted. He does like visits with his mommy. He would like to live with his mother if that's possible." The court apparently failed to take these factors into consideration and did not consider any alternatives such as kinship legal guardianship toward which DYFS and defendant could work.

As we noted previously, defendant's counsel advised the court that DYFS provided no services to defendant for approximately nine months, although defendant had submitted names of doctors on at least two occasions, and defendant "really hasn't had the opportunity to prove herself to [the court]."

Without considering any of these factors, the trial court ordered that the matter be set on a "dual track." The court did not order DYFS to provide defendant with a bus ticket to visit the children in Pennsylvania, nor did it order DYFS to step up services to defendant in light of the nine-month delay, or direct DYFS to consider kinship legal guardianship in light of the law guardian's representations. The entire permanency hearing covered merely eleven pages of transcript.

At the dispositional hearing on January 15, 2008, after hearing only defendant's testimony when she was unrepresented, the court dismissed the abuse and neglect case and authorized DYFS to file the guardianship complaint for termination of parental rights.

Defendant argues that the trial court erred in dismissing the abuse and neglect complaint without sufficient evidence to determine whether reunification was possible. Indeed, defendant maintains that there was no evidence to demonstrate that DYFS made reasonable efforts to reunite the children with their mother. Nor did the court consider kinship legal guardianship, N.J.S.A. 3B:12A-1 to -7, as an alternative to termination.

In its responding brief, DYFS comments that "although T.M. objects to the entry of the permanency order, she does not contend that L.L. and R.L. can be returned to her or the children's father, who is incarcerated in Arizona." DYFS argues that parental rights will not be terminated until the parents "are afforded a plenary guardianship hearing, represented by counsel, at which [the] Division bears the burden to prove by clear and convincing evidence that R.L. and L.L.'s best interests require termination." DYFS further notes that "[e]ven if the Division's goal were kinship legal guardianship," that issue could be established during the termination proceedings. Consequently, DYFS maintains that, "[t]here is no due process violation here." We disagree.

Although defendant was provided with minimal procedural due process, in that she was given notice of the hearing and had counsel assigned to her, the scant evidence in the record before us does not demonstrate by a preponderance of the evidence that defendant abused or neglected the children, that DYFS made reasonable efforts at reuniting the children with their mother or that the permanency plan was in the children's best interests. Indeed, the record before us is virtually devoid of evidence, even under the standard of In re Cope, 106 N.J. Super. 336 (App. Div. 1969). Most of the information presented to the court was by representation of counsel and defendant was the only witness who testified under oath. Moreover, the court did not even consider the alternative of a kinship legal guardianship. This is of particular concern where the law guardian represented that the children wanted to continue seeing their mother and that R.L. was distressed that if the adoption proceeds, he will not be able to see his mother. We are concerned that the court's failure to consider the alternative to termination of parental rights will result in DYFS making no provision or preparation for a possible kinship legal guardianship in the absence of a court order to do so.

The record is also devoid of any evidence that DYFS made reasonable efforts to provide services to defendant or that it even considered an alternative to termination. DYFS did not explain the nine-month gap before services were provided or why it rejected defendant's efforts to submit names of treatment providers. Contrary to defendant's testimony, DYFS claimed that defendant failed to initiate services on her own. Nor did DYFS explain why it did not transfer the matter to the county to which defendant had moved, particularly since defendant's move was intended to facilitate transportation so that she could obtain services. Defendant was given no opportunity to cross-examine the DYFS caseworker with respect to efforts at providing treatment, nor was she given the opportunity to submit evidence of her own efforts to initiate services.

In the dispositional hearing, where defendant was not represented by counsel, she exhibited knowledge of the children's current status, concern for their well-being and a desire to obtain the necessary treatments to maintain continuing contact with them. None of this was taken into consideration by the court. There were no findings of fact or conclusions of law made by the trial court. In short, nothing about the permanency or dispositional hearings satisfied any reasonable standards for such hearings.

Notwithstanding the fact that defendant may raise such issues as kinship legal guardianship in the termination proceeding, if that alternative had been considered and included in the permanency plan, specific steps could be taken in that direction, particularly with respect to providing defendant with transportation to visit the children on a regular basis.

We are fully cognizant of the time constraints imposed by the Adoption and Safe Families Act (ASFA), 42 U.S.C.A. § 675(5)(c) and (E). Notwithstanding those time constraints, defendant is entitled to evidentiary hearings before a permanency plan is adopted by the court and the abuse and neglect complaint is dismissed and the termination of parental rights complaint is filed.

Accordingly, the order entered on January 15, 2007 is reversed and the matter is remanded for a dispositional hearing at which defendant is represented by counsel, documentation is admitted into evidence, the caseworker is available for cross-examination and defendant has the opportunity to present evidence in support of her efforts to comply with remediation services and establish her interest in a kinship legal guardianship as an alternative to termination of parental rights.

Reversed and remanded. We do not retain jurisdiction.


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