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New Jersey Division of Youth and Family Services v. K.D.S.

March 25, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-82-07.

Per curiam.



Submitted December 1, 2008

Before Judges R. B. Coleman, Sabatino and Simonelli.

Defendant K.D.S. appeals from an October 12, 2007 judgment of the Chancery Division, Family Part, terminating her parental rights to three of her four children, T.C.M.S., T.T.M. and S.B.S.,*fn1 and awarding the guardianship of the children to the Division of Youth and Family Services (the Division or DYFS) to consent to their adoption. The order also terminated the parental rights of E.M., the putative father of T.C.M.S. and T.T.M., and the parental rights of C.G., the putative father of S.B.S. We conclude that there was enough evidence to support the trial court's decision. We affirm. Neither father has appealed the termination of his parental rights.

We start by reciting the relevant facts surrounding the involvement of the Division with K.D.S. and her children. K.D.S. has a history of heroin and other substance abuse. She was unemployed for most of the past seven years except for a few months when she worked as a waitress. At the time of trial, she resided with her paramour, M.B., in a rooming house. Little is known about M.B., except that he has a criminal history.

The Division first became involved with K.D.S. on July 24, 1998, when she gave birth to her second child T.T.M. At the time of T.T.M.'s birth, both he and K.D.S. tested positive for opiates. K.D.S. admitted to using heroin on a daily basis during her pregnancy, in addition to consuming alcohol. At the time, K.D.S. and her oldest son, T.C.M.S., were living with E.M., who was dealing drugs. The Division substantiated abuse and referred K.D.S. for multiple services. The Division closed that case on June 23, 2000.

In 2004, truancy charges were filed against K.D.S. regarding T.C.M.S.'s poor attendance in elementary school. On June 29, 2004, the Division received a referral indicating that K.D.S. had passed out after getting high, that there had been drug activity going on for a long time, that T.C.M.S. and T.T.M. are often outside unsupervised, and that K.D.S. does not open the door when they try to get into the apartment. The report was not substantiated, but the case remained open for supervision. On January 23 and February 2, 2005, the Division received referrals alleging that the children were left home alone. Both reports were determined to be unfounded.

On March 9, 2005, K.D.S. informed Division worker, Lori Saggese, that she needed financial assistance to pay her electric bill. Ms. Saggese gave K.D.S. the numbers for Energy Assistance and told K.D.S. to contact the Division if Energy Assistance was unable to help her. Ms. Saggese informed K.D.S. that the Division's investigation revealed that the children needed medical check-ups and were not up to date on their immunizations. Additional concerns included the children going to school with dirty clothes and without eating breakfast, and T.T.M. not doing his homework. Ms. Saggese offered TAFCAR*fn2 services, which K.D.S. declined.

On March 11, 2005, K.D.S. informed the Division she had not yet contacted Energy Assistance. Ms. Saggese gave her the telephone numbers of Catholic Charities and UOSS, as alternative resources if Energy Assistance was unable to help her, and advised K.D.S. to contact the Division if these agencies were unable to help her.

On March 30, 2005, the Division received a referral indicating that the family was living under "nasty" conditions, K.D.S. was using drugs and was recently charged with assault for hitting another female with a baseball bat, and the caller had been watching different men go in and out of the house. During the Division's investigation, K.D.S. denied all such allegations and stated that her criminal charges were for harassment, not assault. The Division worker found the home dirty and cluttered, with a bad odor, however, K.D.S. agreed to clean the apartment. At the time, K.D.S. was receiving Welfare assistance, food stamps, child support and rent assistance. K.D.S.'s portion of the rent was $30. She was referred for a substance abuse evaluation and urine screen, which she failed to attend.

On June 12, 2005, the Division received a referral from Ms. Saggese indicating that the home remained dirty and cluttered, with rotten food on the floor, and that K.D.S. might be using drugs. During the Division's investigation, K.D.S. "denied using drugs but admitted using marijuana." Division worker Lori Holloway determined that the home was dirty but not to the level of neglect. Ms. Holloway advised K.D.S. that a dirty home is a form of neglect and having so much clutter in a small space is a fire hazard. K.D.S. agreed to receive family-preservation services through TAFCAR and to undergo a substance abuse evaluation.

On Sunday, October 9, 2005, the Division received a referral from the Camden Police, indicating that the children had been left alone since Friday, October 7, 2005 and that the home had no electricity. A neighbor reported that on Saturday, upon realizing the children were alone and without electricity, she allowed the children to spend the night at her house. Upon her return, K.D.S. requested that the children be placed at her mother's house. The police transported K.D.S. and the children to the maternal grandmother's house, and K.D.S. left.

T.C.M.S., twelve-years-old at that time, reported he had last seen K.D.S. on Friday, October 7, 2005, before he left for school. K.D.S. was not home when T.C.M.S. returned from school, and she did not return until Sunday. T.C.M.S. denied knowing where K.D.S. was for that period of time. He reported that the family had not had electricity since September. T.C.M.S. denied the use of drugs by anyone in the house but stated that K.D.S. consumes alcohol to calm herself down when she is mad. T.T.M. reported likewise concerning K.D.S.'s absence from the home since Friday and the lack of electricity. In addition, T.T.M. recalled being left alone in the past and not feeling safe because "sometimes people come to the door and we don't know who they are."

At trial, K.D.S. testified that she left the children with a neighbor on Friday, and returned that same day, then left again on Saturday, leaving the children with the same neighbor. The court rejected this testimony and found it not credible.

On October 9, 2005, two Division workers went to the family home accompanied by the police. The Division worker described the apartment as "an absolute disarray," with leftover food covered with mold within reach of a child, leftover food everywhere, "piles of clothes, dishes, barbeque grill, trash, papers and other unidentifiable objects covering the . . . floor." The home was unsafe. On that date, the Division removed the children without court order, pursuant to N.J.S.A. 9:6-8.29 to 30. Because the maternal grandmother, S.B., indicated that she was unable to care for the children, the Division placed them together at a resource home. Subsequently, T.C.M.S. and T.T.M. were moved into another foster home. The Division provided services to the children, including Robin's Nest and Total Family Solutions for T.C.M.S. and T.T.M.

On October 12, 2005, the Division filed an order to show cause and verified complaint. The trial court ordered K.D.S. to undergo substance abuse and psychological evaluations and to follow treatment recommendations.

On October 17, 2005, K.D.S. informed the Division that she was staying with her paramour, M.B., at a boarding house. She stated she was receiving food stamps and her rent was $10 a month under Section 8, but she had no income, since C.G. was incarcerated and not paying child support. Subsequently, K.D.S. lost her housing assistance because (1) she violated one of the rules by failing to maintain electricity and (2) she was considered to have abandoned the apartment.

On October 19, 2005, K.D.S. informed the Division she had recently applied for energy assistance. Two days later, K.D.S. submitted to a substance abuse evaluation by the Center for Family Services (CFS). CFS recommended that K.D.S. receive out-patient care and arranged three intake appointments at Cooper House and transportation. The Copper House program included living-life classes, parenting classes, group and individual therapy and twelve-step meetings. K.D.S. failed to attend all three intake appointments.

On October 31, 2005, K.D.S. completed a psychological evaluation with Dr. Meryl Udall, who recommended that K.D.S. attend out-patient substance abuse treatment and counseling. On December 5, 2005, K.D.S. attended an intake appointment at Cooper House and was scheduled to begin attending its out-patient program the next day, which she failed to do. She tested positive for opiates on December 6, 2005. On January 25, 2006, the Division met with K.D.S., M.B. and K.D.S.'s parents, who indicated they were unable to care for the children.

On January 26, 2006, K.D.S. stipulated that she committed acts which she agreed "constitutes abuse or neglect pursuant to law." The trial judge found by clear and convincing evidence that "[K.D.S.] abused or neglected the children in that they were placed in substantial risk of harm." On that date, the Division placed T.C.M.S. at TLC Shelter in response to behavioral problems he was presenting at his foster home, despite counseling and mentoring services. Subsequently, T.C.M.S. was placed at Vineland Residential Facility.

On March 20, 2006, K.D.S. was scheduled to attend Cooper House but failed to do so allegedly because she was working at a diner and seeking housing. The next day, the court ordered that K.D.S. attend Cooper House, seek employment and find suitable housing. In July 2006, K.D.S. obtained employment, for the first time in five years. She quit this job after approximately eight months.

On March 7, 2007, Dr. Linda R. Jeffrey completed a psychological evaluation of K.D.S. Dr. Jeffrey diagnosed K.D.S. with Dysthymia, Substance Dependence and Personality Disorder with antisocial, sadistic and histrionic personality features. She opined that K.D.S. "has serious unresolved substance abuse, emotional and personality problems that seriously decrease her parenting capacity to provide a minimum level of safe parenting for her children." Dr. Jeffrey further opined that "it is highly unlikely that [K.D.S.] would be able to enforce rules and demands consistently and with appropriate monitoring, to differentiate her children's needs from her own, and to teach her children appropriate social skills and management of emotions." She did not recommend that the children be returned to K.D.S. and opined that "[t]hey are highly likely to be at risk of harm in her care."

Dr. Jeffrey also conducted a bonding evaluation between K.D.S. and the children. She opined that the children recognize K.D.S. as their mother, "appeared to have an affectionate tie to her[,] . . . displayed insecure attachment to [her]," and were likely to experience some harm if their relationship with K.D.S. were to be severed. S.B.S. would likely experience the least amount of harm, while T.C.M.S. would likely be distressed, particularly given his age. However, Dr. Jeffrey opined that K.D.S.'s "lack of skill in managing the children's behavior is likely to be highly detrimental to [T.C.M.S.] as an adolescent."

On April 7, 2007, Dr. Jeffrey conducted a bonding assessment between T.T.M. and his foster mother, with whom T.T.M. had been living for eight months. Dr. Jeffrey opined that T.T.M. "made a positive adjustment to the foster mother, . . . responded to her parenting authority," and "is securely attached to her." Dr. Jeffrey further opined that T.T.M. "is in significant need of stability and attentive care," and that "[s]everance of this secure bond is likely to cause him serious and enduring harm." She recommended that T.T.M. remain in the care of this foster mother.

Finally, Dr. Jeffery conducted a bonding evaluation between S.B.S. and her foster parents, with whom she had been living for almost a year and a half. Dr. Jeffrey concluded that "S.B.S. is securely attached to the foster parents[,]" and severance of this secure bond "is likely to cause serious and ...

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