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New Jersey Division of Youth and Family Services v. J.W.

May 7, 2009


On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Ocean County, Docket No. FG-15-27-08.

Per curiam.



Submitted April 22, 2009

Before Judges Cuff, Fisher and Baxter.

J.W. appeals from a May 30, 2008 order that terminated his parental rights to his three children, a son J.W., born November 10, 1996; another son, J.W., born October 12, 1999; and a daughter J.W., born January 22, 2005.*fn1 The order in question awarded guardianship of the three children to the Division of Youth and Family Services (DYFS) for purposes of adoption.*fn2 We affirm.


From the time J.W.'s older son was born in November 1996 until J.W.'s rights were terminated nearly twelve years later, he has been in and out of prison, abusing drugs and, by his own admission, unable to provide a safe environment for his three children.

DYFS involvement with this family began on November 26, 2002, when Brick police notified DYFS that the younger son had sustained a ruptured kidney and head trauma in a car accident when the child's mother, R.K., allowed him to sit in the back seat unrestrained. J.W. was not in the car. Because R.K. was emotionally unstable and appeared to be under the influence of drugs, DYFS sought information about J.W. to determine if he was a suitable caregiver. Upon contacting Brick police, DYFS learned that J.W. had a lengthy criminal history. As part of its investigation, DYFS asked J.W. to submit to a urine drug screen, which showed that he had recently used cocaine and heroin.

Although J.W. agreed to undergo a substance abuse evaluation, he failed to appear for the scheduled evaluation on December 19, 2002. Less than six weeks later, he was arrested for driving a stolen vehicle, and was incarcerated from March 2003 through January 2004. While J.W. was in prison, the younger son was bitten in the face by a dog while in the care of R.K. When DYFS determined that R.K. was still abusing drugs, the agency removed both boys and placed them in foster care.

In January 2004, upon J.W.'s release from prison, DYFS reunified the family by returning the two boys to R.K. and J.W., and appointed Family Preservation Services (FPS) to monitor both parents' drug use and J.W.'s problems controlling his anger. FPS worked with the family until October 2004. By then, R.K. reported that she and J.W. were no longer living together and that she and the boys were living with her mother. DYFS did, however, continue to monitor R.K.'s care of the children. The FPS therapist reported that the older son expressed considerable anger at his father for an earlier relapse that resulted in J.W. being locked up.

On March 22, 2006, J.W. was taken into custody and incarcerated because he violated the rules of his Drug Court probation by submitting someone else's urine sample when he knew his own sample would reveal the presence of drugs. He remained incarcerated until April 2007 when he was released to a halfway house, where he remained until April 2008.

His incarceration prevented J.W. from protecting his three children from the consequences of their mother's drug use. Specifically, in September 2006, while J.W. was incarcerated, DYFS learned that R.K. had left all three children alone in a motel room.*fn3 At that point, the older son was nine years old, the younger son was six, and the daughter was one. A week later, on September 25, 2006, DYFS received another referral, again alleging that the children were alone and running outside unsupervised in the parking lot of the motel. Upon arriving at the motel, the DYFS worker discovered that R.K. had been arrested and had left her children with her cousin. The worker spoke with the older son, who at the age of nine explained that it was his responsibility to take care of his brother and sister. He was aware that his father was in prison for drug use. After rejecting the maternal grandmother as a placement due to her prior criminal record, DYFS placed the two boys together in an approved foster home in October 2006. At the same time, DYFS placed the daughter in the custody of a maternal aunt. The children have remained in those placements ever since.

Shortly after the two boys began living with their foster mother, she reported that both suffered from severe behavioral and emotional problems. As a result, DYFS provided therapy for both children as well as an in-home behavioral assistant. The findings of those therapists are telling. During a February 7, 2007 assessment by ValuOptions, the therapist described the older boy's "problematic behavior," which included "temper tantrums, yelling and screaming, preoccupation of thoughts and nightmares associated with the death of his [maternal grandmother]," who had recently committed suicide. The therapist attributed the older son's uncontrollable anger to the "multiple disruptions" the child had experienced, which included "the incarceration of his father who was expected to be released from jail but received additional time due to another criminal charge received while incarcerated," as well as the removal from his mother and having been repeatedly "exposed to family violence," which included "physical abuse and domestic violence" between his parents.

The therapist's description of the younger son was even more troubling. He described the child's behavior as "explosive," which included choking people when angry, punching holes in walls and doors, hitting other children, tripping people, and generally losing his temper at the smallest provocation.

A few months later, during a caseworker's May 25, 2007 visit with the two boys at their foster home, the younger son, who was seven years old, reported that he "cannot wait to have sex," that he already knew about kissing and oral sex, and had seen his parents engaging in such activity.

When the caseworker next visited the home on June 11, 2007, the older son reported that he had written a letter to the judge begging her not to return him to his ...

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