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

February 25, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FG-17-27-07.

Per curiam.



Submitted January 20, 2009

Before Judges Sapp-Peterson and Alvarez.

J.K. appeals a January 15, 2008*fn1 order terminating her parental rights to S.S., a baby girl born on September 6, 2006, and granting guardianship and control of S.S. to plaintiff, the Division of Youth and Family Services (Division).*fn2 We affirm.

The Division's involvement with J.K. predated S.S.'s birth. Its first involvement occurred in 2000 with the removal of her first born child, M.S., who was five years old at that time. He was placed with his father, and at the time of trial, J.K. had not seen him in four years, purportedly because M.S.'s father would not allow her to do so. Her second child, A.S., born in 2000, was adopted by a maternal aunt and uncle. When her third child, J.S., was born in June 2004, J.K. was incarcerated.

Although neither she nor her child tested positive, J.K. admitted drug usage during this pregnancy. The Division placed J.S. in foster care and provided services to J.S. Because J.K. substantially complied with services the Division provided, it returned J.S. to J.K. in late 2004. On January 10, 2005, however, J.S. was once again removed from J.K.'s custody because of her relapse into drug use. She voluntarily surrendered her rights to J.S. in June 2006.

One day after S.S.'s birth, the Division received a referral from the hospital expressing concern for S.S.'s welfare because J.K. did not have custody of her three other biological children. J.K. and S.S. both tested negative for drugs. The Division obtained care and supervision of S.S. and permitted J.K. to continue as the custodial parent to S.S. but provided J.K. with in-home parenting education from FamCare.

During a November 16 visit from a Division caseworker, the caseworker was reportedly concerned about J.K.'s behavior around S.S. and suspected that J.K. could be under the influence of drugs. The Division did not seek removal of S.S. from J.K.'s care at that time. J.K., however, was aware that an arrest warrant had been issued by the Salem County Superior Court Drug Court for her failure to appear for drug court and violation of probation. In anticipation of her pending arrest, J.K., with the consent of the Division, arranged for a friend to keep S.S.

After two weeks, the friend advised the Division that this arrangement could not continue because of S.S.'s constant crying. On December 4, the Division obtained custody of S.S., and S.S. has remained in foster care since that time.

On December 18, 2006, the court sentenced J.K. to a three- year state prison term for violation of the terms and conditions of her drug court probation. The court ordered supervised visitation. J.K. was released from incarceration in May 2007 but was again arrested three months later as a result of further drug court violations that included her acknowledged drug usage. She remained incarcerated at the time of the termination hearing but was scheduled to be released December 5, 2007. In total, J.K. had been incarcerated for nine months of S.S.'s fifteen- month-old life at the time of trial.

A trial was held before Family Part Judge Darrell M. Fineman on November 26 and 27, 2007. On January 15, 2008, the court entered an order terminating J.K.'s rights. The order was accompanied by a detailed and comprehensive thirty-two page written opinion. In that decision, Judge Fineman carefully evaluated the proofs under the four-part test first set out in New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986), later codified in N.J.S.A. 30:4C-15.1(a). As to the first prong, "The child's health and development have been or will be endangered by the parental relationship," N.J.S.A. 30:4C-15.1(a)(1), Judge Fineman found:

In this matter J.K. has proven to have serious long[-]term drug dependence with cocaine and marijuana. This has caused her to have repeated incarceration, lack of employment and unstable housing ...

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