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New Jersey Division of Youth and Family Services v. K.V.N.

March 12, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
K.V.N. AND D.D., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF S.W. AND A.W., MINORS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-53-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 9, 2009

Before Judges Lisa, Reisner and Sapp-Peterson.

D.D. and K.V.N. (collectively, defendants) appeal from a judgment of the Superior Court, Chancery Division, Family Part, entered on January 30, 2008, terminating their parental rights to their biological children: S.W., born November 26, 1003, and A.W., born November 3, 2005. The judgment also granted guardianship of the two children to the Division of Youth and Family Services (Division). We affirm.

The evidence presented at trial disclosed that the Division first became involved with the family in April 2005 when it received two referrals. The first referral, received April 4, 2005, alleged that on March 15, 2005, K.V.N. abused a child from another family. A second referral, received April 22, 2005, alleged that S.W., who was born HIV positive, missed a medical appointment. The Division investigated this complaint but found no basis to intervene. On July 11, 2005, the Division responded to another referral reporting that D.D., who was also HIV positive, was twenty weeks pregnant, and was not administering S.W.'s HIV medication. During this investigation, the Division learned that D.D. was homeless and was unable to medicate S.W. because the medication required refrigeration and the friend with whom she was living did not allow her access to the home in the friend's absence. The Division conducted an emergency removal of S.W. when D.D.'s godmother, with whom D.D. was temporarily living, advised the Division that she had been unable to retrieve S.W.'s medication despite efforts to do so.

S.W was later returned to D.D. after she secured housing at a local motel. Welfare paid for D.D's stay at the motel until she found housing at an apartment. The Division retained care and supervision of S.W.

In addition to paying for D.D. and the children's stay at a motel, the Division provided mental health services to D.D. When D.D. was hospitalized for the birth of A.W., S.W. resided with his maternal grandmother, C.D. The Division once again received a report that S.W. was not receiving his HIV medication and another emergency removal occurred. Upon her discharge from the hospital in early November, D.D. and the two children commenced living with D.D.'s maternal aunt, P.T.

One month later, D.D. started to live with her maternal uncle, K.D. The Division provided K.D. with diapers, formula, and a pre-paid cell phone. D.D. in turn continued to receive mental health services from Steininger Behavioral Care Services (Steininger). Additionally, D.D. received assistance from the AIDS Coalition, Salvation Army, Catholic Charities, Board of Social Services, Legal Services, and Cooper Hospital Pediatric Infectious Disease Division. The Division also provided D.D. with bus passes for transportation. Although the Division arranged for S.W. to attend Weisman Medical Daycare to ensure that his medications for HIV would be administered on a daily basis, D.D. at times did not take him to daycare.

On January 23, 2006, D.D. expressed a desire to secure an apartment of her own in the same complex as her uncle because living with him proved to be uncomfortable. Before securing her own apartment, however, D.D. was incarcerated in March. K.V.N., who had not been living with her at this point, was also incarcerated in March. Both parents were released and started living together in April along with the children. During this time, D.D. also learned that she was pregnant with a child fathered by K.V.N.

D.D. and K.V.N.'s living arrangements did not last very long. K.V.N. was incarcerated again but was eventually released in June. D.D. told her Division caseworker that she no longer desired to have contact with K.V.N. because he had stolen checks from her and used the checks to buy drugs. She later reported that he stole her bank and food cards. D.D.'s paternal uncle advised the Division that D.D. and the children could no longer live with him. The children started living once again with D.D.'s maternal aunt, P.T., but D.D. was not satisfied with this arrangement because she was experiencing visitation problems.

In July, P.T. notified the Division that she preferred that the Division take custody of the children because she wanted no contact with D.D. The Division conducted a home visit and learned that before returning to live with P.T., the children had been sleeping in the park with their parents, who were using crack cocaine. On July 26, D.D. and P.T. signed a case plan in which the two agreed that the children would remain with P.T. In the meeting, D.D. also agreed to continue to seek services from South Jersey Behavioral Health and Steininger, to look for stable housing, and undergo psychological and substance abuse evaluations. D.D. did not attend her first scheduled evaluation on July 31, 2006. An August 1 criminal background check revealed that P.T. had a 2001 narcotics charge. The Division worker told P.T. that in order for her to keep the children, a waiver would need to be submitted. Finally, on August 11, S.W. was placed at Dooley House and A.W. was placed in a Special Home Special Provider (SHSP) foster home.

The Division contacted P.T. on August 22 to secure proper information for the waiver. P.T. never gave the Division the proper information to complete the waiver. P.T. later informed the Division that she no longer desired to keep the children, as she would be working and would be unable to care for the children. D.D. was told on August 24, 2006 that P.T. would not retain care of the children. D.D. only expressed her desire that the children be placed together. She did not offer the names of other relatives for the children's placement. Both children were placed in Dooley House.

D.D. had tested positive for cocaine during a substance abuse evaluation on August 22, 2006 and was referred to inpatient treatment for substance abuse and counseling. D.D. was subsequently admitted to Hogan House for housing and substance abuse counseling. The program was scheduled for twenty months. However, if D.D. complied with the program, she would be released earlier. Hogan House provided the opportunity for D.D. to move to a housing program sponsored by Welfare. D.D. and her children would be seen weekly by a case manager to monitor S.W.'s medication intake. Hogan House was next door to Dooley House where the children resided. D.D. completed five weeks in the program, after which she was discharged.

On October 3, during a case management review session, D.D and K.V.N. were ordered to submit to psychological evaluations, substance abuse evaluations, treatment, as well as random urine screenings. Although she completed five weeks in the program, D.D. was discharged from Hogan House as she failed to comply with house rules and expectations.

A fact-finding hearing was held on November 16, 2006 before the Honorable Octavia Melendez, J.S.C. Judge Melendez determined that the children, S.W. and A.W., were abused and neglected as: D.D. tested positive for cocaine on August 22, 2006; D.D. did not provide the children with stable housing; K.V.N. was incarcerated and did not provide a plan for the care of the children; S.W. had a life-threatening illness and his parents placed him with individuals who were unaware of his illness. K.V.N. and D.D. were ordered to submit to psychological evaluations, counseling, substance abuse evaluations and treatment, and random urine screenings.

Upon release from jail in December of 2006, K.V.N. did not contact the Division. D.D. also failed to contact the Division from November 22 to January 23, 2007. Additionally, D.D. missed a psychiatric evaluation scheduled for November 30, and a third scheduled psychological evaluation set for December 12. As of January 17, 2007, D.D. tested positive for cocaine and opiates at the time of her admission to Cooper Hospital for a skin infection on January 17.

On February 6, a compliance review hearing was held in which D.D. was ordered to attend a psychological evaluation, psychiatric evaluation, as well as to undergo substance abuse evaluation and treatment. D.D. was also ordered to comply with Steininger and South Jersey Behavioral Health. On February 6, the maternal grandmother's application to care for the children was dismissed based upon her prior aggravated assault conviction and recent release from prison for violation of probation.

S.W. and A.W. remained at Dooley House from August 2006 until February 2007, during which D.D. visited them fifteen times. K.V.N. was present for four of the fifteen visits. D.D. completed a psychological evaluation on February 13, 2007 with Dr. Meryl Udell. The following day, D.D. completed a psychiatric evaluation with Dr. Edward M. Baruch. D.D. completed a second substance abuse evaluation on February 15, 2007. Although D.D. requested an inpatient program, it was recommended that she attend intensive outpatient treatment. D.D. was referred to but later dismissed from the Family First Program when she missed several intake appointments.

On March 19, 2007, the Division learned that both D.D. and K.V.N. were residing at the Water Street Rescue Mission in Lancaster, Pennsylvania. While D.D. and K.V.N. reported that the home was a substance abuse treatment program, the Division contacted the home and learned that it was an emergency shelter and not a substance abuse treatment program.

On April 4, 2007, S.W. and A.W. were placed in their current foster care home. On May 13, both parents were incarcerated for charges of first-degree robbery and possession of a weapon. The Division filed a Complaint for Guardianship for S.W. and A.W. on July 13, 2007. A permanency hearing was held before Judge Melendez on July 23, in which Judge Melendez accepted the Division's plan to terminate the parental rights of D.D. and K.V.N. followed by their adoption. The same day, the court terminated the abuse/neglect litigation. Custody of the two children was continued with the Division under the guardianship litigation.

The Division's expert, Dr. Frank Schwoeri, Ph.D., conducted a psychological evaluation and bonding evaluation of D.D. Dr. Schwoeri also conducted a psychological evaluation and a bonding evaluation of K.V.N. Additionally, he conducted a bonding evaluation with the foster parents. K.V.N. underwent a psychological evaluation with his expert, Dr. Kenneth Goldberg, Ph.D., as well. Dr. Goldberg did not conduct a foster parent bonding evaluation. D.D. did not separately undergo a psychological evaluation by an expert retained by the defense.

At trial, Dr. Schwoeri testified that there was a risk of harm to both children if they were returned to D.D. or K.V.N. In his opinion, the parents were at a high risk of relapse. He indicated that both parents needed to secure housing, become employed, and remain drug-free for a year prior to their being able to parent the children. Dr. Schwoeri also testified that neither parent had a specific plan for reunification with the children, and he noted that both parents were incarcerated at the time of trial. He expressed concerns about S.W. and his foster mother, opining that S.W. would be a challenge "for the best[-]equipped and least vulnerable of parents" and that S.W. "is going to be a handful for anybody." He opined that returning the children to their biological parents "would expose them to further risk of harm due to neglect and inadequate care[,] in addition to compounding their attachment problems by causing another disruption and risking a subsequent one if the parents failed again to care properly for them." Moreover, Dr. Schwoeri opined that it was in the children's best interest to stay with their foster parents and removal of the children from their current home would be harmful to both children and catastrophic for S.W. Finally, Dr. Schwoeri concluded that termination of parental rights would not do more harm than good.

Dr. Goldberg testified regarding K.V.N.'s history of addiction to crack cocaine and incarceration as well as the risk of his proclivity for relapse. In his opinion, K.V.N. needed to be drug-free for six months before the children could be placed with him. He viewed K.V.N.'s plans for the children as general rather than specific. Dr. Goldberg did not render an opinion as to whether termination of parental rights would do more harm than good as he did not conduct a bonding evaluation with the children and their foster parents.

In reaching her decision terminating defendants' parental rights, the judge found that defendants' conduct had endangered the safety, health and welfare of the children with no likelihood that the conduct would change, that they had failed to take the requisite steps to eliminate the harm confronting the children, the Division had undertaken reasonable efforts to assist the parents in their reunification with their children, and that terminating D.D.'s and K.V.N.'s parental rights would not do more harm than good. The present appeal followed.

On appeal, K.V.N. raises the following points for our ...


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