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


April 13, 2009


On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Cumberland County, Docket No. FN-06-110-06.

Per curiam.



Submitted March 18, 2009

Before Judges Baxter and King.

In this Title 9 abuse and neglect litigation, T.B. appeals from an April 17, 2008 order that terminated the litigation without requiring the Division of Youth and Family Services (DYFS) to provide T.B. with further services and without directing DYFS to pursue reunification of T.B. with her son, C.C. We affirm.


C.C. was born on August 22, 1988 with Downs Syndrome and severe developmental disabilities. DYFS involvement with T.B. began in November 2004, when it filed an abuse and neglect complaint against T.B. and removed C.C. from her care after she was admitted to the mental health crisis unit of a local hospital. After T.B. completed substance abuse treatment, the abuse and neglect litigation was terminated and C.C. was returned to his mother.

T.B.'s sobriety did not last long, because on December 15, 2005, C.C.'s maternal grandmother called DYFS to report that T.B. was taken by ambulance to a local hospital after C.C. found her unconscious. When a DYFS worker met with T.B. at the hospital, the worker observed that T.B. was sluggish, her speech was unintelligible and slurred, and she smelled of alcohol. T.B. was unable to provide the telephone number of her adult daughter, H.M., or to provide the address of her parents, who lived next door. The hospital reported that T.B.'s confusion and disorientation was the result of alcohol intoxication.

In the months that followed, the maternal grandparents notified DYFS that T.B. was again abusing drugs and alcohol. At the same time, H.M. reported that T.B. was neglecting C.C.'s personal hygiene because his fingernails were long and dirty, and he was malodorous.

On December 20, 2005, DYFS filed an order to show cause and verified complaint alleging that C.C.'s removal was required to prevent imminent danger to his "life, safety or health" based on T.B.'s substance abuse and inability to care for him. At the same time, DYFS removed C.C. from T.B. and placed him with H.M.; however, on January 19, 2006, DYFS in conjunction with the Division of Developmental Disabilities (DDD) placed C.C. in a DDD resource family home. After failing to appear at the first two scheduled hearings after the removal, T.B. finally appeared with counsel on September 25, 2006, at which time the judge terminated the litigation because C.C. was over the age of eighteen and had achieved permanency through his DDD placement.

T.B. filed an appeal of the September 25, 2006 order, and sought a remand to the trial court for a full factfinding hearing. By order of May 16, 2007, we remanded the matter to the trial court for a full evidentiary hearing, and directed the trial judge to determine whether T.B. had neglected C.C.

The remand proceedings spanned a ten-month period between June 26, 2007 and April 17, 2008, and encompassed seven hearings. At the first hearing, on June 26, 2007, T.B. did not appear, but a DDD representative reported that T.B. had only visited C.C. once in the previous six months even though DDD continuously offered her transportation. Shortly thereafter, T.B. was arrested and incarcerated for failing to obtain substance abuse treatment that had been ordered in an unrelated domestic violence action. She remained incarcerated for two months.

Indeed, T.B. was still in custody at the time of the next hearing on August 2, 2007. Under oath, she voluntarily waived her right to a full trial, and stipulated that her use of alcohol and drugs impaired her ability to effectively parent her son, thereby placing him at risk of neglect. She testified that she offered such stipulation freely, and that doing so was in C.C.'s best interest. Judge Mendez accepted her stipulation as knowing, voluntary and willing. He found that C.C. was an abused and neglected child, as defined by N.J.S.A. 9:6-8.21, based on T.B.'s "very severe alcohol and substance abuse problem, which . . . impacted her ability to properly parent her special needs child, [C.C.]." During the hearing, the Law Guardian reported that C.C. regularly visited and telephoned his sister, H.M., with whom he wanted to live.

By the time of the third hearing on September 10, 2007, T.B. had been released from jail and appeared in court with counsel. The judge denied her request for unsupervised visitation with her son, ruling that until she completed a substance abuse program, visitation would remain supervised. T.B. informed the judge that she had an appointment in October to enter an inpatient drug treatment program. At the end of the hearing, T.B. submitted to a urine drug screen, which tested positive for cocaine and marijuana.

T.B. did not attend the fourth hearing on December 3, 2007. A DYFS caseworker testified to T.B.'s non-compliance with services, especially her failure to appear at three scheduled substance abuse evaluations. The caseworker reported that DDD had been transporting C.C. to T.B.'s home for weekly supervised visitation. A caseworker from DDD reported that C.C. was faring well in his skilled resource home placement, and was working part-time detailing cars. Because T.B. was still not complying with treatment and was testing positive for drugs, the court ordered her visits to remain supervised. T.B. eventually appeared for her substance abuse evaluation and the evaluator recommended inpatient treatment.

Over DYFS's objection, Judge Mendez kept the litigation open to see if T.B. would complete the court-ordered drug treatment that was vital to her ability to provide a secure and safe home for her son. The judge determined that continuing the litigation to February 11, 2008 would afford T.B. the opportunity to present reasons why the litigation should not be terminated.

T.B. failed to appear on February 11, 2008, and DDD reported that T.B. had lost contact with the agency and was no longer visiting her son. DYFS, in turn, reported that although it had secured a bed for T.B. at an inpatient drug treatment program, she refused to enroll.

By the time of the sixth hearing on March 14, 2008, T.B. was again incarcerated, this time for failure to pay fines; however, she was produced for the hearing and appeared with counsel. By then, C.C. had been in his DDD placement for more than two years. T.B. testified, offering several excuses for her non-compliance with court-ordered treatment, including a claim that she did not need inpatient treatment and was unwilling to "board up" her home and "shut everything off" for the thirty days that she would be in treatment. T.B. also blamed DYFS for not coordinating the funding for her inpatient treatment. She did, however, admit to an ongoing and chronic addiction to cocaine. T.B. also testified that she had chosen to maintain a "distant" relationship with C.C. because she did not want to get "too close" to him before going away for treatment. She informed the court that she had not been telephoning C.C. and did not wish to visit him until her drug treatment was complete. At the conclusion of the March 14, 2008 hearing, the Law Guardian reported that C.C. did not want to see his mother.

Again, at the March 14, 2008 hearing, as it had done at the December 3, 2007 hearing, DYFS moved to terminate the litigation. DYFS argued that for two years T.B. had failed to comply with services or consistently visit her son. The court denied DYFS's motion to terminate the litigation, deciding instead to schedule another hearing, and encouraged T.B.'s counsel to submit a brief supporting T.B.'s contention that the litigation should remain open.

Despite being released from jail on March 16, 2008, T.B. failed to attend the final court hearing on April 17, 2008. The judge observed that T.B. had discontinued all contact with the court, her attorney and DYFS. Again, the Law Guardian reported that C.C. wished to avoid further contact with his mother, but was anxious to live with his sister. Specifically, the Law Guardian reported C.C.'s fear that his mother had resumed drinking heavily, and interposed no objection to terminating the litigation because C.C.'s interests were being satisfied through DDD.

In a comprehensive oral opinion on April 17, 2008, Judge Mendez terminated the litigation, reasoning that C.C. had achieved permanency through his DDD placement and through his relationship with H.M., who had petitioned for guardianship. The court observed that because C.C. suffers from Downs Syndrome, he requires constant supervision, which T.B. had been unable to provide. The judge also found that T.B.'s prolonged use of alcohol and drugs, combined with her failure to avail herself of agency services, constituted neglect, especially in light of C.C.'s profound disabilities and enhanced need for care and supervision. Judge Mendez made the following findings:

The court is satisfied that the purpose[] of [DYFS's] [original] involvement[,] to [e]nsure that [C.C.] was safe and protected[,] has been met . . . [DYFS made] reasonable efforts [toward] reunification . . ., [but T.B.] [n]ever took . . . advantage of those efforts. There's permanency for [C.C.] already, in terms of this current arrangement with [DDD], where he has stability, and where he has protection, and he's safe, and his medical needs and other needs are taken care of. And, that program also permits for visitation from [T.B.] to the point where they have actually transported [C.C.] over to her house on occasions, and provided supervised visitation.

I am therefore satisfied that there is no need at this point to keep this litigation open, because all goals of the case have been satisfied in terms of the permanency of [C.C.] The goal of completing substance abuse services by the mother has not been met, because . . . [T.B. failed] to take advantage . . . of . . . the opportunity to complete services . . . .

I see no reason to [keep] this litigation open at this point, and I will therefore sign an order today terminating the litigation. . . . [W]e kept the case open subsequent to [T.B.'s] stipulation for almost a year to allow for additional opportunities for her to take advantage of services. She has not done so. So, the time has come to close this case. I'm satisfied that the closure is appropriate, and I will therefore sign an order accordingly today.


On appeal, we defer to the Family Part's findings of fact because of that court's special jurisdiction and expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Indeed, those findings of fact are binding upon us unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

On appeal, T.B. maintains that the trial court committed reversible error when it chose not to pursue reunification between her and C.C. DYFS and the Law Guardian both urge us to affirm the trial court's termination of the Title 9 litigation. They maintain that the Family Part's termination was correct both because C.C. is in a safe and secure setting and because T.B. is not entitled to continued services from DYFS.

The governing statute, N.J.S.A. 9:6-8.8a, authorizes DYFS to provide services "for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. The safety of the children served shall be of paramount concern." N.J.S.A. 9:6-8.8a. In any case in which the permanency plan for the child does not include reunification, "reasonable efforts shall be made to place the child in a timely manner and to complete the steps necessary to finalize the permanent placement of the child." N.J.S.A. 9:6-8.8b(4). However, in those instances where the child in question is developmentally disabled and reaches the age of eighteen after the Title 9 litigation has begun, DYFS is authorized to provide services to the "child" until he reaches his twenty-first birthday, so long as he consents to receiving such services. N.J.S.A. 9:17B-2f.

Here, C.C. turned eighteen prior to the time T.B. filed her first appeal. T.B. has cited no authority to support her contention that DYFS continued to have an obligation to provide services aimed at reunification once C.C. turned eighteen. We recognize that DYFS removed C.C. from T.B.'s care before he turned eighteen. Such emergency removal could only be authorized if C.C. was in danger of physical harm. N.J.S.A. 9:6-8.8(a). Unquestionably, T.B.'s August 2, 2007 stipulation--that her use of alcohol and drugs impaired her ability to safely and effectively parent C.C.--served as the necessary factual predicate that justified the initial removal of C.C. from her care. T.B.'s claim that DYFS was thereafter required to provide her with services is both unsupported and meritless.

Moreover, the record amply supports Judge Mendez's conclusion that the Title 9 litigation should come to a close. C.C. is now approaching his twenty-first birthday, and has repeatedly expressed through his Law Guardian a desire to terminate further contact with his mother. He resides in a specialized home for persons with developmental disabilities, where his social, educational and medical needs are being satisfied. In short, through his DDD placement, C.C. has achieved the permanency and stability that his mother did not provide.

The record also amply supports Judge Mendez's conclusion that for a two-year period, DYFS offered T.B. an array of services that she repeatedly refused to accept. After DYFS first removed of C.C. in November 2004, DYFS provided, and paid for, drug treatment services that enabled T.B. to temporarily regain custody of C.C. However, T.B. failed to maintain her sobriety and DYFS again removed C.C. from her care in December 2005. Thereafter, during two years of remand litigation, and seven court hearings, T.B. was offered repeated opportunities to avail herself of the drug treatment programs DYFS offered. The record demonstrates that she refused those services and, indeed, was incarcerated on two separate occasions.

A person with developmental disabilities, such as C.C., is entitled to, and needs, far more stability than T.B. -- with her repeated hospitalizations, periods of incarceration and alcohol-induced stupor -- provided. Moreover, the record demonstrates that T.B. chose not to visit her son even though DDD repeatedly offered transportation for that purpose. T.B. herself conceded that she wanted to remain "distant" from him.

Judge Mendez conducted an evidentiary hearing and afforded T.B. the opportunity to testify and explain why she was entitled to reunification with her son. The judge demonstrated extraordinary patience. He afforded T.B. numerous opportunities, far more than her indifferent attitude actually justified, and twice denied DYFS's motion to terminate the litigation. He did so to ensure that T.B. received a full and fair opportunity to demonstrate that she could provide a safe environment for her son. She failed to so demonstrate.

As the Court recognized in N.J. Division of Youth and Family Services v. A.W., 103 N.J. 591, 607 (1986), "[t]here is a natural tendency to want to continue working with . . . parents to restore the family unit." However, children have their own rights, including the right to a safe and stable environment. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). There comes a time when the offspring's need for safety and security outweighs the parent's right to continued custody of that child. Ibid. Judge Mendez's order of August 17, 2008 is correct, wholly in accord with governing statutes, and is amply supported by substantial credible evidence in the record.



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