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New Jersey Division of Youth & Family Services v. J.O.

April 23, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-176-07.

Per curiam.



Argued March 23, 2009

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

Defendant J.O. appeals from a May 5, 2008 judgment of the Family Part terminating her parental rights to her child J.C. and granting guardianship of the child to the Division of Youth and Family Services (DYFS).*fn1 We affirm.

These are the relevant facts adduced at trial. DYFS first became involved with this family on April 29, 2006, following a referral from the police department. J.O., herself, was known to DYFS from services provided to her as a child. The referral was based on police and Emergency Medical Services response to an anonymous report that an infant at defendant's address was not breathing. The infant, A.C., was pronounced dead by hospital personnel at 3:04 a.m. DYFS immediately commenced an investigation. Lieutenant Musso*fn2 of the Jersey City Police Department, who initially observed the residence at the time of the incident, reported that the apartment had no electricity, the home was "chilly," and there were no appliances except for a small dorm-sized refrigerator powered by an extension cord running to a neighboring apartment. There was no furniture in the apartment, the children had very little clothing and there was minimal food in the home. A.C. was reportedly found in a small playpen beside a sleeping ten-month-old J.C., both wearing only diapers, and three-year-old, I.M., was found sleeping naked underneath a blanket on a small mattress on the floor. Both J.O. and W.C. were unemployed at the time and living on public assistance.

The Medical Examiner determined that A.C. died from blunt force trauma to the head with subdural hemorrhage, also known as "shaken baby syndrome." W.C. admitted to the authorities that he had thrown a baby bottle at A.C., hitting her in the head. W.C. also admitted to hitting A.C. and shaking her in the past. Additionally, a post-mortem examination revealed that A.C. had a broken rib in the process of healing. In a post-incident interview, a DYFS caseworker reported:

[J.O.] stated she knows the bottle hit the baby because [the baby] was crying and then the baby's cry changed as thought [sic] something happened. [J.O.] stated she asked [W.C.] if he did something to the baby and he stated the Bitch did not want to take her bottle so he threw the bottle at her.

Upon questioning of J.O. regarding the abuse of A.C. and why no medical help was sought for her, J.O. told the caseworker "she was not responsible for the baby and told everyone from the beginning she wanted no part in raising or caring for her." DYFS substantiated neglect by W.C. and J.O. for failing to provide basic needs to the three children. I.M. and J.C. were placed in the care and custody of J.C.'s paternal grandfather and his live-in paramour. I.M. was later permanently placed with his biological father.

W.C. was taken into custody and charged with aggravated manslaughter, endangering the welfare of a child and child abuse. He pled guilty to aggravated manslaughter and was sentenced to a term of twelve years. J.O. was arrested May 1, 2006, and eventually pled guilty to endangering the welfare of a child, and child neglect. J.O.'s sentence was 218 days in jail and two years probation. She was released on December 4, 2006.

An order to show cause was filed on May 2, 2006. The return date was scheduled for June 14, 2006, and the judge reserved decision regarding visitation in jail. On June 14, 2006, DYFS withdrew its requests for a psychological evaluation of J.O. and began exploring terminating her parental rights. Initially, J.O.'s defense attorney advised her not to comply with any of the Division's recommendations due to the criminal endangerment charges.

On June 16, 2007, DYFS was advised by the Union City Police Department that J.O. was arrested for drug possession with intent to distribute. Those charges were eventually dropped. From April 30, 2007 through December 2007, J.O. violated her probation by failing to report on nine occasions.

J.O's responsiveness to DYFS was not positive. DYFS was not able to schedule supervised visitation until November 2007. Thereafter, J.O. attended only six out of thirteen scheduled visits with J.C. DYFS also scheduled psychological evaluations on seven occasions, and J.O. failed to attend.*fn3 J.O. did attend a bonding and psychological evaluation on December 18, 2007, and January 29, 2008. She told the psychologist, Dr. Iser, that she had "nothing to talk about" and refused to take part in some of the psychological tests. Dr. Iser conducted the bonding evaluation, and although he observed that J.O. hugged and kissed J.C., "there was no reciprocity of affection on his part." Dr. Iser concluded in his recommendation:

Based on [J.O.'s] exhibited behavior, I believe that her actions are not consistent with those of a mother who wishes to be reunited with her child. I recommend that [J.O.] undergo Intensive Psychotherapy with a licensed clinical psychologist and address issues regarding her neglect of [A.C.], her subsequent death, and additionally address her genuineness in attempting to gain custody of [J.C.].

J.O. obtained a psychological expert, Dr. Marc Friedman, in preparation for trial. Dr. Friedman found that a bond did exist between J.O. and J.C. In his report, Friedman recommended that J.O. not have custody of J.C. at the present time, and that she be evaluated by a psychiatrist for anti-depressant medication. Friedman recommended that J.O. undergo at least a year of psychotherapy before any attempt was made to reunite her with her child.

On March 27, 2007, the judge entered a permanency order closing the abuse and neglect litigation and ordering DYFS to file a guardianship complaint by May 21, 2007. On May 22, 2007, the guardianship proceeding commenced, and an order to show cause was filed.

On February 4, 2008, W.C. surrendered his parental rights to J.C. Following a trial, Judge DeCastro rendered her written decision on May 5, 2008, terminating J.O.'s parental rights as to J.C. After an ...

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