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Division of Youth and Family Services v. S.W.

March 13, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-61-07.

Per curiam.



Submitted January 29, 2009

Before Judges Axelrad, Lihotz and Messano.

Defendant S.W. appeals from the Family Part's October 25, 2007 order that terminated her parental rights to her twin sons, E.J., Jr., and J.J., born October 9, 2003, and her daughter, N.J., born August 16, 2005.*fn1 She contends that the decision to terminate her parental rights was "against the weight of [the] submitted evidence and testimony" adduced by plaintiff, the Division of Youth and Family Services (D.Y.F.S.). Additionally, S.W. contends, for the first time, that the children were "never placed together in contradiction of D.Y.F.S. policy and the Child's Placement Bill of Rights[.]" As a result, she argues "visitation should continue between the children."

We have considered defendant's arguments in light of the record and applicable legal standards. We affirm.


D.Y.F.S. became involved with S.W. when her first son, A.J., was born in 2002. At that time, defendant admitted using heroin and cocaine during the pregnancy. However, when both she and the child tested negative for drugs, D.Y.F.S. released A.J. to his mother, and he resided with defendant and E.J. until the spring of 2003. At that time, defendant relapsed into drug use and her mother took custody of A.J.*fn2

On September 6, 2003, D.Y.F.S. received another referral after defendant presented herself to the Monmouth Medical Center seeking assistance for her substance abuse. Defendant, who was twenty-four weeks pregnant at the time, admitted to using heroin and cocaine during her pregnancy, and she had received little pre-natal care. Before a D.Y.F.S. caseworker was able to respond, however, defendant left the hospital against medical advice and efforts to locate her were unsuccessful.

On October 14, 2003, D.Y.F.S. received another referral that defendant had given birth to twin boys, both of whom tested positive for cocaine and heroin. The twins were deemed to be "medically fragile" by D.Y.F.S., and they remained in the Neonatal Intensive Care Unit for approximately two months due to complications from their early birth. Both underwent surgery to repair bilateral inguinal hernias. Defendant executed a D.Y.F.S. case plan, agreeing to undergo substance abuse and psychological evaluations. She acknowledged using marijuana, cocaine and other opiates, and admitted that she had been incarcerated for five months in 1998 for possession of heroin. On December 4, 2003, defendant executed an informed consent for the twins to be placed in foster care for six months after D.Y.F.S. determined that placement with their maternal grandmother was not appropriate.*fn3

On December 15, 2003, defendant was admitted to the Carrier Clinic for inpatient substance abuse treatment and was discharged after completing nineteen days of the twenty-eight-day program because of the limits of her insurance coverage. On February 3, 2004, she entered Riverview Medical Center's Addiction Recovery Services Intensive Outpatient Program, attending group sessions, Alcoholics Anonymous (AA), and Narcotics Anonymous (NA) meetings. Defendant was allowed visitation with her children and was subjected to drug screening, yielding one positive drug screen for cocaine. On March 31, 2004, she was discharged after completing the program.

On February 17, 2004, defendant was psychologically evaluated by Dr. Alan Lee. She acknowledged a long history of drug and alcohol abuse, beginning at age seventeen. Lee found defendant to be "verbally hostile, belligerent, and [] abusive[,]" lacking "personal and emotional awareness[.]" Lee concluded defendant displayed "a significant affective (mood) disorder, most likely depression," of which she was unaware. Her depression was a strong contributor to her irritability, anger management problems, and to her substance abuse. Lee found that defendant "trie[d] to eschew personal responsibility for [taking drugs while pregnant] and minimize[d] and distort[ed] her problems." Lee did not support reunification of defendant with her children.

During April and May 2004, defendant failed to attend two scheduled psychiatric evaluations, failed to return her case manager's phone calls, failed to attend follow-up counseling services arranged by D.Y.F.S., and failed to attend supervised visitation sessions. Her whereabouts became unknown. On June 3, 2004, D.Y.F.S. filed a complaint for, and was awarded custody of, E.J., Jr. and J.J. Continued efforts to supply defendant with services were met with her sporadic attendance.

On September 8, 2004, defendant waived her right to a fact-finding hearing and stipulated that her drug use "during pregnancy le[d] to pre-term labor resulting in premature birth of both children who suffered physical harm." The court ordered defendant to continue intensive outpatient therapy on an individual basis, submit to frequent random urine screens, attend AA and NA meetings and provide verification of that attendance, maintain employment and a stable residence, and attend parenting skills education and anger management counseling. Although supervised visitation with the children resumed, defendant's participation was still sporadic, and, by February 2005, it was again terminated.

In March 2005, while defendant continued to resist services, D.Y.F.S. filed an order to show cause and complaint for guardianship of the twins. On April 24, 2005, defendant was arrested on an outstanding warrant for loitering in a known drug neighborhood. On August 16, 2005, defendant gave birth to N.J. D.Y.F.S. immediately filed a complaint for custody of the child who was removed from defendant's care and temporarily placed with her maternal grandmother based upon defendant's non-compliance with services in the pending custody matter.

On October 19, 2005, Lee conducted a second psychological evaluation of defendant, finding her to have more accurate insight into her situation and accepting more personal responsibility for her actions. Lee recommended that she continue with individual counseling, random drug testing, and attend support groups. He also recommended that she receive specific training as to the special medical and developmental needs of the twins.

The following month, Lee conducted a bonding evaluation between defendant and her sons. As to E.J., Jr., Lee observed that he did not know defendant, and, while his opinion as to whether the child had formed any significant psychological attachment or bond with defendant remained equivocal, Lee determined their interactions suggested the potential for further attachment and bonding. However, Lee opined there was low risk for significant, enduring or irreparable psychological harm if ...

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