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

April 23, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-76-08.

Per curiam.



Argued March 2, 2009

Before Judges Carchman and Sabatino.

In this consolidated matter, M.S. and M.M., the biological parents of three minor children, appeal the Family Part's termination of their respective parental rights following a guardianship trial. We affirm the final judgment with respect to the biological mother, M.M., but vacate as to the biological father, M.S., and remand for further proceedings.


We summarize the pertinent facts that emerged at trial. M.S. and M.M. had a lengthy unmarried relationship which resulted in the birth of three children:*fn1 a daughter, Kristen, born in February 1999; a younger daughter, Olivia, born in June 2001; and a son, Andrew, born in November 2003. The record does not indicate that the parties have any other children. M.M. and M.S. apparently cohabitated with one another for approximately nine years.

All three children have behavioral issues, and two of them have been classified with special needs. Kristen, the oldest child, has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and Occupational Defiance Disorder. She has displayed sexualized behavior. At the time of the guardianship trial she was nine years old, but only had recently started to read. The son also has ADHD, as well as an attachment disorder and problems with his vision. At the time of trial, Andrew was enrolled in a special education preschool. Olivia, the middle child, has not been diagnosed with special needs but has received in-home counseling to address her behavioral issues.

The Division of Youth and Family Services ("the Division") first became involved with the children in April 2006, when they were living with M.M. and her boyfriend, W.R., at an apartment in New Jersey rented by M.M.'s mother. M.M. and the children had moved to that apartment in March 2006. Prior to that time, M.M. and the children had lived in Florida, at times cohabitating with the children's father, M.S.

During the time that the children and their parents were all living in Florida, the Florida Department of Children and Families ("the Florida DCF") had investigated reports of wrongful conduct within the parties' household. The Florida DCF first became involved with the parties on November 8, 2005. At the time, M.S., M.M., and the children were living with M.M.'s maternal grandfather. The Florida DCF came to the premises out of concern that the oldest child, Kristen, was "being exposed to violence in the home." According to the Florida agency's investigative report, it had received information that "on several occasions, from 2003 and 2005, [Kristen] has witnessed physical violence between the mother . . . and the father."

For example, the Florida DCF report indicated that on October 4, 2005, the police were called because M.S. had pushed M.M. to the ground during an argument and had begun to choke M.M. with a crowbar. M.S. also reportedly smashed the windows of his vehicle and attempted to attack the maternal great-grandfather with the crowbar. M.S. fled after the maternal great-grandfather fired "two rounds from a [.]22 [caliber] handgun to protect himself and his granddaughter." The report also noted an incident on November 22, 2005, in which M.M. hit Kristen in the eye with a fly swatter, allegedly because Kristen "didn't follow directions."

The Florida DCF also received allegations from the maternal great-grandfather that M.M. would be "gone all night" and would leave the children in the care of the paternal great-grandfather. The maternal great-grandfather further alleged that M.M. did not seek medical care for [Andrew] one night and instead "went out at 4:00 A.M." and smoked marijuana; and upon returning she screamed and yelled at the children and used profanity. The maternal grandfather also furnished documented evidence of injuries to the children allegedly caused by their mother hitting them with her shoe.

The Florida DCF also had concerns about the parents' criminal histories. According to the agency's records, the father, M.S., has an extensive criminal record dating back to 1992, including apparent convictions for: grand theft of two separate motor vehicles, possession and delivery of cocaine, battery, multiple burglaries, trespass, obstructive arrests, petty theft, possession of an open container, and driving with a cancelled license.*fn2 M.S. was subsequently convicted in 2006 of aggravated battery with a deadly weapon and was incarcerated in Florida. The mother also had a prior conviction for a marijuana offense.

The Florida DCF did not remove the children from M.M.'s care at the time of its initial involvement in November 2005 because it apparently felt that the risks of harm were tempered by the fact that M.S. was then in jail, and also because the paternal great-grandfather was then living with M.M. and was "protective of the children."

On March 2, 2006, M.M. was arrested for assaulting W.R., following an argument in which they were both intoxicated.*fn3 Nine days later, on March 11, 2006, M.M. was charged with evading arrest by giving the police a false alias.*fn4

On April 17, 2006, M.M. was arrested for aggravated assault after the Kearny Police Department received a report that she had stabbed her ex-husband, A.C. At the time of the stabbing, A.C. had been dating M.M.'s own mother. Evidently, M.M. had attacked A.C. after an altercation arose between A.C. and M.M.'s then-current paramour, W.R. The stabbing was observed by all three children.

The Kearny police notified the Division of M.M.'s arrest. The police observed that there were nine people, including the parties' three children, living in the two-bedroom apartment and there was only one bed on the premises. The police also noted that the conditions inside the residence were "filthy" and there was "trash all over the floors." A Division caseworker visited the apartment that same night, and he noted that the apartment was "overcrowded," although it "was not filthy as indicated in the [police] report." The caseworker also noted that "[t]he children were sleeping on [a] mattress laid out in the dining area of the apartment, while the other sets of mattress[es] were laid out in the floor of the living room."

Initially, the Division left the children with the maternal grandmother, who was then residing at the Kearny apartment. However, the children were removed the next day, on April 18, 2006, because the maternal grandmother disclosed a criminal history involving illegal drugs, and also because W.R., M.M.'s current paramour, admitted to drug use in the home. The maternal grandmother thereafter tested positive for cocaine, opiates and alcohol.

On April 20, 2006, the Division filed an order to show cause in the Family Part under an "FN" docket against M.M. and M.S., seeking protective custody of the three children. Initially, the Division was not aware of the whereabouts of M.S., who had been recently incarcerated in Florida. Several weeks later, the Division located M.S. in Florida. On May 17, 2006, a week before the return date on the order to show cause, the Division served M.S. with a letter notifying him of the pendency of the Division's application in the Family Part. The letter noted that M.S. had "advised [the Division] that [M.S.] was currently between residences," and it instructed M.S. that "it is very important that [he] remain in contact with [the Division] to discuss the progress of the case."

On May 24, 2006, M.S. confirmed receipt of the pleadings in the protective services case. He advised the Division that he was in jail at the time the children were removed. He stated that he had not talked to his children in nine months and requested a conference call with them. M.S. provided a telephone number where he could be reached.

In response, the Division told M.S. that "both of his concerns will be discuss[ed] with the DAG [Deputy Attorney General] and he will receive[] a call from the Division tomorrow." The next day, on May 25, 2006, the Division contacted M.S. and informed him that the DAG was not working that day and would not be in until the week after in order to discuss his concerns. The Division told M.S. that he would receive a call "as soon as the case is conference[d] with the attorney." The Division also provided M.S. with an 800 phone number. M.S. "thanked [the] worker for returning [his] call and stated [that] he can always be reached at [the phone number he had provided the previous day]."

Despite these initial communications in May 2006 and the commitment to get back to M.S., the record suggests that neither the Division nor anyone from the Attorney General's Office made contact again with M.S. until July 25, 2007, some fourteen months later. The purpose of the Division's July 2007 communication was to notify M.S. that a court date regarding the children was scheduled in August 2007, and that the Division had scheduled an appointment for M.S. to undergo a psychological evaluation in advance of that hearing.

The order to show cause on the protective services application was heard on May 24, 2006. At that time, M.M. appeared in court and stipulated through her counsel that the children had been removed because of the assault against A.C. for which she was arrested. The trial court granted the Division custody of the three children. It also ordered M.M. to undergo a psychological and substance abuse evaluation, and to attend domestic violence counseling and parenting skills training.

M.M. underwent a substance abuse evaluation in June 2006 and tested negative. In July 2006, she appeared for a psychological evaluation with Daniel Bromberg, Ph.D. In his lengthy report, Dr. Bromberg stated that:

[M.M.] presented as an emotionally unstable woman with a history of limited insight and poor judgment. [M.M.] has traits of antisocial personality disorder and histrionic personality disorder. She described her current emotional functioning as "depressed." She has limited frustration tolerance and difficulty inhibiting her aggressive impulses. She appears minimally attached to her three children and has, historically, placed her own needs before theirs. [M.M.] had an unstable and tumultuous childhood . . . . [M.M.]'s current parenting practices model those of her childhood in that she endorses the use of corporal punishment . . . . At this time, [M.M.] is not able to appropriately care for and protect her children. She is an emotionally labile and impulsive adult. Her aggressive and violent behavior poses a significant risk with her children until she demonstrates emotional stability via psychotherapy, medication management, and parenting classes . . . . Based on her limited insight into how treatment could be beneficial to her, her prognosis in therapy is poor.

[(Emphasis added).]

M.M. subsequently enrolled in therapy, intensive parenting classes, and domestic violence training.

After initially failing to appear for three appointments, M.M. attended a psychiatric evaluation in August 2006 with Ernst Christian Gauderer, M.D. Dr. Gauderer reaffirmed the findings of Dr. Bromberg's earlier psychological evaluation. The psychiatrist noted that the "patient [M.M.] claims to be motivated, but at the same time, refuses to even consider the possibility of using medication that would help her to address her impulsive behavior." Dr. Gauderer concluded that "[t]he prognosis is poor." The psychiatrist recommended against reunifying the children with M.M.

Having failed to attend parenting courses, despite a warning that she must do so, M.M.'s registration in that program was cancelled in August 2006. That same month, M.M. moved back to Florida and took up residence with her grandparents.

M.M. eventually completed an intensive parenting program in Florida on February 1, 2007. By February 5, 2007, she had attended one psychological assessment and four therapy sessions, but had cancelled or not shown up for four other sessions. She also was suspended once from her domestic violence classes for lack of attendance, but was eventually reinstated. As of the time of trial, M.M. had completed fourteen out of twenty-six of such classes.

In January 2007, the Florida DCF approved reuniting the three children, who had been in various foster or treatment homes since the time of their removal in April 2006, with their mother in Florida. Specifically, the Florida DCF approved the maternal great-grandfather's house, where M.M. was then living, as a suitable residence for the children. The Florida agency notified the Division of its determination, and the Division made an appropriate application to the Family Part. Consequently, on February 14, 2007, the Family Part ordered that the children be returned to M.M. in Florida, finding that she had made sufficient progress at that point in complying with the Division's recommendations.

Unfortunately, the children needed to be removed from M.M.'s care a second time. The removal occurred in July 2007, five months after the February 2007 placement, following an updated home study conducted by the Florida DCF. The home study was prompted by reports that one of the children was not attending counseling or taking her medication.

The home study revealed that M.M. and the children had left her relative's premises and had moved into a two-bedroom apartment with W.R. The three children were all sleeping in the same bedroom. M.M. claimed that W.R. was not living in the home, but admitted that "he stays there sometimes." In addition, the Florida caseworker remained concerned that the oldest child, Kristen, was not attending counseling nor taking medication.

Moreover, the Florida DCF conducted a background check of W.R. and discovered that he had been charged by M.M. with committing domestic violence on May 24, 2007. According to the police report, M.M. was driving with W.R. and the youngest child, Andrew, who was then age three. M.M. and W.R. were arguing. W.R. then "escalated the confrontation by grabbing [M.M.] around the neck and pulling her hair. He then grabbed the steering wheel and tried to step on the accelerator trying to cause [M.M.] to crash[.]" According to the police report, W.R. then stated that he "would kill them all." The Florida DCF contacted the Division on July 11, 2007, and reported these revelations.

Having received this alarming information from Florida, the Division instructed M.M. that W.R. "must leave the home immediately" and move Andrew into her bedroom. The next day, July 12, 2007, the Florida DCF contacted the Division and requested that the children be returned to New Jersey. That same day, the Division sought and was granted an order of removal in the Family Part. At the ensuing trial, a Division caseworker testified that at the time of this second removal, W.R. was found hiding in the closet.

After the children were removed from her care a second time, the Division enrolled M.M. in several additional programs to focus upon anger management, domestic violence and parenting skills. M.M. did not attend these classes until several more referrals were made.

M.M. was also referred to the Family Service Bureau of Newark ("the Bureau") for a mental health assessment on November 21, 2007. Based on its evaluation, the Bureau recommended that M.M. attend individual therapy sessions, take prescribed psychotropic medication for depression and anxiety, and attend psychotropic medication management sessions. Subsequently, the Bureau terminated M.M. from its services, due to her lack of attendance.

M.M. attended an updated psychiatric evaluation in January 2008 with Dr. Gauderer. His assessment of M.M.'s capacity to parent continued to be unfavorable. In his report, Dr. Gauderer noted that M.M. was "again . . . involved with someone on whom she had to call the police, according to her, because he was drunk in her car. Basic issues that demonstrate well-functioning such as holding a job and being self sufficient has still not occurred, and she still lives at the expenses of others." Dr. Gauderer also noted that "therapy [for M.M.] might prove beneficial, but it is questionable [since] she has not shown significant change" and that "medication might prove beneficial as she herself stated, but she is noncompliant with treatment and is not motivated in being started or restarted on medications." The psychiatrist concluded that M.M.'s prognosis remained "poor," and that "[r]eunification with her children would not serve the best interests of those children and would only satisfy the patient's need [and] will most likely perpetuate the cycle of abuse, neglect and poor parenting."

At trial a Division caseworker related another disturbing incident concerning M.M. She testified that M.M. had visited the children shortly before trial and had asked the worker for paper and a pencil so that the children could write a letter to the judge. According to the caseworker, the DYFS supervisor who was at the scene advised M.M. not to tell the children what to write to the judge. M.M. then "became very explosive with the supervisor." M.M. asserted that the Division "doesn't need to tell her what to do." She subsequently called W.R. and told him to come over before she "killed" the caseworkers, "that she was going to go to jail today and she was upset."

According to the caseworker, M.M.'s outburst alarmed the children. Olivia hid behind the worker and asked her to, "please hide"; Kristen ran out the room, saying "I don't want to be in there"; and Andrew was trying to be as loud as his mother. After this particular visit was then terminated, the caseworker spoke to M.M. to try to calm her down. The worker explained to M.M. that it was inappropriate for her to be so angry to cause the children to become afraid. M.M. acknowledged to the worker that she was not aware of her surroundings when she had gotten angry.

By comparison, the record is sparse with respect to services extended by the Division to the children's father, M.S. As we have already noted, there was a fourteen-month gap between May 2006 and July 2007, in which there was no contact between the Division and M.S. During that interval, M.S. was not provided by the Division with any opportunity to have contact with the children. M.S. contends that between the children's first removal from their mother in April 2006 and their second removal in July 2007 he called the Division on several ...

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