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New Jersey Division of Youth and Family Services v. A.K.


May 7, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-207-07.

Per curiam.



Argued April 20, 2009

Before Judges Lisa, Reisner and Sapp-Peterson.

Defendant A.K. appeals from a June 5, 2008 Family Part order terminating parental rights to her three children, M.K., M.R. and Z.K. We affirm, substantially for the reasons stated in Judge Hayden's comprehensive written opinion dated May 29, 2008.


A.K. has two daughters: M.K., born January 26, 2000; and M.R., born April 29, 2002. A.K.'s son, Z.K., was born on December 12, 2005. The children all have different fathers, whose rights have also been terminated, and who have not appealed to this court. Both M.R. and Z.K. were born exposed to marijuana.

A.K. and her family were first referred to the Division of Youth and Family Services (DYFS or Division) in December 2000. DYFS has twice taken custody of her children. M.K. and M.R. were removed from A.K.'s care at "[t]he beginning of 2004," but were later returned to her in October 2005. All three children were then removed from A.K. in June 2006, when she last had custody. In total, A.K. has been referred to DYFS approximately twelve times.

A. Referrals and Removals

At trial, the factual background concerning A.K.'s various interactions with the Division was chronicled in the testimony of Kanella Phelps, the DYFS supervising caseworker for the subject family; Beth Watkins, a DYFS exchange specialist; as well as Andre Reeves, a DYFS adoption worker.

In June 2000, A.K. brought M.K. to a hospital emergency room in Newark, and fell asleep while supervising M.K. Hospital workers had difficulty rousing her, and also discovered she had no medical insurance, nor information as to M.K.'s medical history. DYFS initially opened its case as a result of this incident.

In July 2002, A.K. was referred to DYFS because she was "being physically aggressive towards [M.K.] and verbally aggressive." Upon information provided by O.K., A.K.'s father, the DYFS referral report also alleged that A.K. was "drug involved."

In December 2003, A.K. was referred to DYFS after A.K. brought M.K. to the hospital, at which time M.K. "complained that her vaginal area was sore." Phelps further testified that "[s]exual abuse was substantiated," as committed by "[T.K.], her cousin." According to Phelps, A.K. "wasn't surprised" at the incident of abuse by T.K., because T.K. "was caught rubbing pants with one of her nieces. So, they knew that he was prone to such behavior." Phelps testified that A.K. and K.K. (her sister) took M.K. and "left the hospital against the Division's advice and the medical staff['s] advice." DYFS thereafter conducted a search for A.K. and her family so that M.R. could also be examined for evidence of sexual abuse, but they could not be located. According to Phelps, this incident gave rise to concerns about K.K., as she had assisted A.K. in concealing the children from the Division.

Thereafter, in March 2004, the children were removed from A.K.'s care due to her failure to follow through with prescribed services, and her general evasion of Division supervision. Reeves testified that M.K. and M.R. were placed with K.K. in March 2004, and returned to A.K. in October 2005 after a brief stay with their maternal great-grandmother, F.P. F.P. was eventually ruled out as a possible placement for the children because, during this period, F.P. allowed the children to come into contact with T.K.

A.K. was again referred to DYFS in December 2005, when Z.K. was "born exposed to marijuana." DYFS did not then take custody of Z.K., M.K. or M.R., but did add Z.K. to the protective services litigation.

In June 2006, A.K. was again referred to DYFS because, according to Phelps, "the family didn't have operable utilities in their apartment," specifically referring to the lack of electricity in the home. This was apparently discovered when an investigator from the prosecutor's office interviewed M.K. while the girl was at school. DYFS paid for the restoration of utility service at A.K.'s home.

Following these events, A.K. again tested positive for marijuana, and the children were again removed from her care. DYFS documents also note that A.K. had failed to "take [M.K.] for her sex abuse therapy." All three children were eventually placed with the aunt, K.K.

However, in August 2006, the children were removed from K.K.'s custody because, according to Phelps, "we got a report that [T.K.] was frequenting the home and he had even spent the [night] in the home and shared a bedroom with [M.K.]," whom he had previously sexually assaulted. Indeed, a contemporaneous DYFS report indicates that T.K. was actually living with K.K., and sharing a room with M.K. Phelps testified: "Our concern with [K.K.] was that she wasn't safeguarding [M.K. and M.R.] from the perpetrator of the abuse." However, Phelps noted that the referral was not "substantiated."

Z.K. was subsequently placed in the care of a maternal cousin, D.H.; M.K. and M.R. were placed in foster care, provided by Tri-City Peoples Corporation. A.K. and K.K. were permitted to visit with the children at Tri-City, though A.K.'s visits were stopped due to her inappropriate behavior. A.K. visited approximately eight times. A.K. testified that she felt the foster parents mistreated M.K. and M.R. K.K. also visited frequently. According to Reeves, the Tri-City foster parents were not interested in adopting any of the children "because of... the actions of [A.K.]."

In November 2007, A.K. was arrested following an altercation with D.H., and had a physical altercation with D.H. in February 2008. However, A.K. denied having a criminal record.

Phelps and Reeves testified that upon termination of A.K.'s parental rights, Z.K. would be adopted by A.K.'s cousin, D.H., a licensed foster parent. Reeves stated that, at the time of the hearing in this matter, Z.K. had been placed with D.H. for approximately one year. Phelps added that K.K. was interested in adopting M.K. and M.R., though K.K. was not a licensed foster parent. However, Phelps added that even if K.K. "does not work out" for adoption, the sisters would be "adoptable" nonetheless.

At the time of the hearing, A.K. testified that she had a three-bedroom apartment, was working in her father's business for the sum of $200 per week, and that she was also self-employed as a hair stylist. She had been working with her father, O.K., for three years, but could not prove her employment because the work was "under the table." A.K. acknowledged that she previously received social security income, but had stopped receiving benefits prior to the hearing.

A.K. claimed that, at the time of the hearing, she would not have tested positive for marijuana. A.K. testified that she had not graduated from high school, but had completed grade eleven. When asked about a "plan" for her children, A.K. testified that she wanted her children to be returned, and were she to retain her parental rights, she would use her section eight housing stipend to relocate her family, and "just go live our life somewhere else... where it [will] be right."

B. Expert Evaluations of A.K.

A.K. underwent psychological evaluations beginning in 2002. In separate assessments, first Dr. Andre J. Francois, and later Dr. Margaret DeLong, diagnosed A.K. with "depressive disorder" and "impulse control disorder." Dr. Linda Cameron further evaluated A.K. in 2005, finding her to "demonstrate depression" and "otherwise inadequate personality traits." In November 2006, after the second and final removal of the children from A.K.'s care, A.K. was evaluated by Dr. Leslie J. Williams. Williams reported that A.K. refused to acknowledge her drug problem, or any fault for the incidents that led to her children's removal from her care. Indeed, even as of the hearing, A.K. refused to acknowledge "any drug problem." A.K. was in turn referred to Dr. Alexander Iofin.

Iofin testified as to two reports, dated March 28, 2008 and April 13, 2008. He noted as significant A.K.'s ongoing drug abuse; she had tested positive for marijuana in February 2008, just months before the hearing in this matter. Indeed, while Iofin noted that A.K. did not have any "significant cognitive impairment," he was troubled by the fact that A.K. had exposed two of her unborn children to drugs, a "deliberate act." Iofin also noted that he observed evidence of "psychiatric pathology" and "affectve disorder," but could not determine whether she suffered from a "major depression disorder." On this basis, Iofin concluded that A.K. would not be able to stop her drug use, and would be not able to parent her children. Iofin also recalled that A.K. failed to show up for a number of scheduled appointments, and was generally "resistant" to being evaluated.

Further, Iofin's report recommended that A.K. receive treatment as a "M.I.C.A. patient or dual diagnosis patient," and so receive simultaneous treatment for psychological problems and drug abuse problems. He believed that such a program would be "helpful", and opined that A.K. could provide "minimal adequate care" to her children if she received M.I.C.A. treatment and abated her drug use. When asked about the effects of marijuana on the ability to parent, Iofin responded that New Jersey laws deem such drug users to be inadequate.

The law guardian presented expert testimony from Dr. Mark Singer. Singer reviewed the results of his November 2007 evaluation of A.K., a forty minute interview, as discussed in his resulting report. He recalled that A.K. missed at least two appointments for evaluations, and that she left early from the November 2007 evaluation in apparent protest, preventing Singer from completing the interview. She admitted "secretly" using marijuana in October 2007. He also indicated that, when asked whether she would keep her children away from T.K., she "sat there quietly" and did not answer, causing Singer concern.

Singer opined that A.K. minimized "how [her] substance abuse may impact upon her ability to parent," especially in light of her inability to refrain from drug use during the pendency of DYFS's investigation. He did not, however, know whether marijuana use generally makes parents unfit. Like Iofin, Singer noted that A.K. refused to "accept responsibility" for her situation. When questioned about the "M.C.M.I. III" test given to A.K., which she refused to finish, Singer stated that though the test was appropriate and would have aided his assessment, her failure to complete the exam did not hinder his ability to evaluate A.K.

Finally, Dr. Elaine Weitz, an expert psychologist, testified on behalf of the Division. In discussing her evaluation of A.K., she relied on her report stemming from an October 2007 interview with A.K. As with other experts, A.K. left her interview with Weitz before completing the evaluation. A.K. admitted to leaving early. Weitz questioned A.K.'s abilities as a parent based upon her extensive involvement with the Division; her "chronic" marijuana use, and her denial of her substance abuse issues; her lack of compliance with DYFS-sponsored services; and her erratic behavior during visitations with her children. Psychological tests indicated that A.K. shared personality traits with those "prone to physically abuse."

Consistent with the other evaluators, Weitz recounted that A.K. failed to appear for appointments on numerous occasions. Weitz acknowledged Iofin's recommendation that A.K. receive M.I.C.A. treatment, but observed that the recommendation was made "very recently." In consideration of the above, Weitz opined that A.K. could not adequately perform as a parent.

C. Services Offered to A.K.

The provision of services to A.K. by DYFS began relatively soon after A.K.'s first contacts with the Division. The Division provided A.K. with psychological evaluations as early as 2002, with Dr. Francois. We have previously outlined the extensive counseling services provided by the Division to A.K., and her sporadic attendance. While DYFS did not offer A.K. a M.I.C.A. program, Phelps testified that, because A.K. had not consistently attended psychological evaluations, the Division could not determine "what services she really needs." Reeves communicated similar frustrations with his difficulties contacting A.K. Generally, DYFS provided transportation to A.K.'s appointments for services, and delivered bus passes to A.K. for this purpose.

A.K. was also referred to substance abuse assessment at least as early as July 2002. She was later referred to a drug program at Johnson & Associates after her son Z.K. was born exposed to marijuana. A.K. missed several substance abuse therapy appointments, and repeatedly tested positive for marijuana. Correspondence from the treatment center further indicated that A.K. was initially not compliant with the program, and though A.K.'s attendance appears to have improved in 2007, she continued to test positive for marijuana use, most recently in February 2008. A.K. conceded that she never completed the program with Johnson & Associates.

In December 2003, a DYFS caseworker referred A.K. to parenting classes, around the time of T.K.'s sexual assault on M.K. A.K. was again referred to parenting classes in April 2004. The class was given at Wise Women Center at Essex County College. Her attendance at these courses was described as "good," though absences were noted. Reeves testified that A.K. did complete parenting skills courses.

The Division also provided "child care services," along with the described visitation with her daughters while they were residing with Tri-City. A.K. was also referred to a "Final Stop" program in February 2008, though she apparently never attended. Moreover, at one time, A.K. had a "parent aide in her home."

Perhaps most significantly, the Division attempted to find relative placements for A.K.'s children. The Division most seriously considered K.K. as a possible placement for the children. However, following the children's removal from K.K.'s care, after the incidents of June 2006, DYFS sent K.K. a "rule-out letter" due to her failure to properly shield the children from T.K. After K.K. appealed the decision, the Division eventually rescinded the rule-out letter, in part upon K.K.'s representations that T.K. was no longer residing in her home, and because "[M.R.] and [M.K.] will be adopted by you." As of the date of the hearing, K.K. had not yet received the requisite license needed to adopt any of the children, though she had completed "her resource family home application." See N.J.A.C. 10:122C-l.1 and -2.1. Reeves testified that DYFS was "in the process of exploring" K.K. as an adoptive parent. Phelps also testified that she did not have any "concerns" with K.K. as a foster parent.

The Division rejected another of A.K.'s cousins, N.H., as a placement because she did not "follow through with the agency." Another relative, K.C., was also ruled out, as well as the maternal great grandmother, F.P. K.C. was ruled out due to a "lack of contact with the agency"; F.P. was ruled out "because of allegations that [T.K.]... was... frequenting the home."

D. The Children's Adoption and Bonding Evaluations

Beth Watkins, an "exchange specialist" dealing in child adoptions, testified for the Division. She stated that M.K. and M.R. would be more easily adopted by a family if they were "legally free" from A.K.'s parental rights. Though the Division is permitted to seek out adoptive homes for children who are not legally free, Watkins conceded that the Division did not have the necessary "pre-adopt approval" to pursue this possibility. Watkins further explained the "select home process," by which legally free children are matched to potential caretakers, along with other mechanisms the Division uses to place children for adoption. She stated that adoption could happen "immediately," following preliminary visits with the chosen, adoptive family.

Watkins was generally optimistic about M.K. and M.R.'s prospects for adoption as a "sibling group," but did admit that the potential for a relative adoption might negatively impact the girls' chances. Watkins did not specifically reference K.K. in this regard, though she later testified that she was aware that K.K. was a potential adoptive parent. Reeves also voiced his belief that "a home can be found for [M.K.] and [M.R.]," which would serve their interest by providing a permanent placement. However, on cross examination Reeves conceded that M.K. and M.R. "want to go back with their mother."

Dr. Singer, appearing for the law guardian, conducted a bonding evaluation between A.K. and all of her children. A.K. completed this portion of Singer's evaluation. He testified that, in observing their interactions, A.K. was "appropriate" with the children, though he did recount that A.K. showed the children an audio tape with "very foul language." Singer opined that M.K. and M.R. were bonded to A.K., and viewed her as a "parental figure," though he declined to describe the bond as "healthy." Singer determined that Z.K. had no "secure attachment" to A.K., and would not be harmed by termination of A.K.'s parental rights. However, he stated that M.K. and M.R. would experience "significant and enduring harm" upon the termination of A.K.'s parental rights. Nonetheless, Singer characterized A.K. as an unfit parent, and supported the Division's goal of terminating parental rights as to all three children. He emphasized the children's need for permanency.

Weitz also conducted bonding evaluations, in September 2007. She described "bonding" as "an affectional relationship between an adult and a child that... occurs during the first three to four years of a child's life...." As to M.K. and M.R., Weitz concluded that the sisters "have a relationship" with A.K., but not a bonded relationship, and not a healthy relationship. Addressing the harm that would befall M.K. and M.R. in the event A.K.'s parental rights were terminated, Weitz opined that there would be an "immediate sense of loss," but qualified her answer:

I think they would be hurt and upset about the idea that they would not be able to see [A.K.] again. But depending on who they were with at the time that they learned about this and who they ultimately ended up being with on a permanent basis, I think that the harm could be mitigated. [Emphasis added.]

Weitz added that the girls would experience more harm from removal from their foster home than from the termination of A.K.'s rights. She testified that, due to the number and frequency of M.K. and M.R.'s placements, they are at risk to develop "reactive detachment disorder."

Weitz also testified that no bond existed between Z.K. and A.K., though Z.K. felt "comfortable" with her. In a separate bonding evaluation between Z.K. and D.H., however, Weitz found that the two were bonded, and that D.H. was Z.K.'s "psychological parent." Significantly, she stated that Z.K. would not suffer any harm if his relationship with A.K. were terminated.

When asked about Weitz's conclusions, Singer indicated that he found a stronger bond between M.K., M.R. and A.K. than did Weitz. He also differed with Weitz on the question of whether the sisters would suffer more harm from severing ties from their foster parents, than from termination of their relationship with A.K.:

[Y]ou would have to do a bonding evaluation with the children and mom... and the children with their current caretaker because, to make a statement like that, you need some type of comparison. I don't have that type of comparison... and I would not make that statement.

On the other hand, Weitz did not believe "severe and enduring" harm would result for M.K. and M.R., from termination of A.K.'s parental rights.

E. Judge Hayden's Decision

In a comprehensive forty-one page opinion, Judge Hayden made detailed findings concerning defendant's intractable drug problems, her lack of cooperation with treatment, her unaddressed mental health problems, the children's multiple foster home placements and their need for permanency.

In applying the four factor analysis required by N.J.S.A. 30:4C-15.1a, Judge Hayden first found under prong one that A.K. had caused harm to her children: the judge found that A.K.'s lack of supervision of M.K. and T.K., despite her knowledge of T.K.'s propensity for inappropriate behavior, contributed to T.K.'s assault on M.K.; that A.K. had mental health issues; that A.K. was a long-time drug user who had not completed provided substance abuse therapy; and that A.K. had failed "to provide a safe and stable home for" the children.

Pursuant to the second prong, Judge Hayden inferred from A.K.'s failure to complete a drug treatment program, or to attend several evaluations in the context of the DYFS investigation, that A.K. was unwilling or unable to abate the harm she caused to her three children. The judge was particularly persuaded by testimony from several experts, and A.K.'s own testimony that she denied having a drug problem.

Next, Judge Hayden noted that the third prong of the inquiry addresses the adequacy of services that the Division provides to the subject parent. The judge found that DYFS had provided A.K. with "substance abuse assessments, urine screens, substance abuse programs, parenting skills classes, counseling and psychiatric and psychological evaluations," in addition to attempts at placing A.K.'s children with several relatives, notably F.P., D.H. and K.K.

Finally, Judge Hayden discussed the requirement under the fourth prong that termination not do more harm than good. She emphasized testimony that A.K. would not presently be able to care for her children. Further, the judge credited the experts' testimony that Z.K. was bonded to his caretaker and future adoptive parent D.H., and not to A.K. The judge's conclusions under the forth prong as to M.K. and M.R. are significant, and we quote them at length:

Drs. Singer and Weitz determined that [M.K.] and [M.R.] were bonded with [A.K.] although they differ on the extent of that bond. Dr. Singer concluded that both girls were securely attached to [A.K.] as a parental figure whereas Dr. Weitz concluded that the girls were bonded to [A.K.] as someone they merely play with. Neither expert characterized it as a positive bond, but conceded that the girls would experience immediate feelings of sadness and loss. Both Dr. Singer and Dr. Weitz opined that should the girls have healthy attachments with their caretaker, the impact of the harm could be mitigated.... [B]oth psychologists agreed that [A.K.] cannot provide adequate parenting and that the children need permanency.

Despite the harm from the loss of their mother, the children need a permanent and safe home and there is little hope that their mother will be able to provide it. Balancing the harm caused by the breaking of the maternal bond against the need for the girls for permanency, both mental health experts concluded permanency was more important. Given the facts of this case, the Court also concludes that here the children's need for permanency after their multiple placements and early instability in the home is paramount.... Thus, I find that the evidence shows that termination of parental rights will not do more harm than good. [Emphasis added.]

In a summary of her decision placed on the record on June 5, 2008, Judge Hayden repeated her conclusion that long-term concerns over permanency trumped considerations of the transient emotional pain that termination of A.K.'s rights might cause M.K. and M.R. A.K., who was present in the courtroom, responded to the judge's decision with a profane tirade which included a threat to "just... take [the children] and... leave."

While it was clear from the trial record that Z.K.'s foster mother was committed to adopting him, it was uncertain during the trial whether an adoptive placement was immediately available for the two girls, M.K. and M.R. After Judge Hayden placed her oral summary decision on the record, the DYFS attorney indicated that the agency was continuing to consider the children's maternal aunt, K.K., as a possible adoptive placement for M.R. and M.K. In its submissions on this appeal, the agency provided additional information indicating that K.K. has now been licensed as a foster parent and wants to adopt the two girls. The agency should have filed a motion to supplement the record before providing us with this information. See R. 2:5-4; R. 2:5-5(b). However, at oral argument, A.K.'s attorney withdrew his objection to our considering the information.


Our review of the trial judge's decision is limited. "The [trial court's] factual findings... should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). And we owe special deference to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Guardianship actions implicate a constitutional right to parental autonomy, recognized under both the federal and New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972); Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008); see also Moriarty v. Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S.Ct. 1408, 158 L.Ed. 2d 78 (2004). However, "[t]hat fundamental parental right... is not without limitation. The State has a basic responsibility, as parens patriae [("father of the people")], to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102. In striking a balance between these competing considerations, courts are required to act in the "best interests of the child," as codified in N.J.S.A. 30:4C-15.1a. See Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986); N.J.S.A. 30:4C-15(c).

To justify termination of parental rights, DYFS must present clear and convincing proof that such termination is in the children's best interests pursuant to N.J.S.A. 30:4C-15.1a. That statute requires the agency to satisfy a four-pronged test:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good. [Ibid.]

On this appeal, A.K. raises the following issues:





Having reviewed the record, we conclude that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in Judge Hayden's thorough and cogent written opinion, which is supported by substantial credible evidence and is entirely consistent with N.J.S.A. 30:4C-15.1a. See Cesare v. Cesare, 154 N.J. 391, 411-12 (1998); R. 2:11-3(e)(1)(A). We add the following comments.

A.K. contends that DYFS did not provide her with appropriate services, because although the agency provided her with drug treatment, she needed a specialized program geared toward mentally ill substance abusers. However, the record reflects that A.K. was not willing to comply with any therapy offered to her, and was not even willing to cooperate sufficiently to allow the agency to determine what programs she needed. In fact, the testifying experts indicated that she missed numerous appointments and, when she finally showed up, she was not even willing to remain in their offices long enough for them to complete their evaluations.

A.K. also contends that her marijuana use did not make her an unfit parent. The termination decision was not based solely on her drug use. However, expert testimony supported the view that in her case, persistent drug use was a legitimate factor to be considered in evaluating A.K.'s parenting ability, as well as in evaluating the level of her commitment to reunification with her children.

A.K.'s remaining contentions concerning the children's best interests are based in large part on distortions of the evidentiary record. Most notably, A.K. seeks to portray the law guardian's expert, Dr. Singer, as a witness favorable to the defense. In fact, Dr. Singer clearly testified that A.K. was not capable of parenting her children and that termination of parental rights was in their best interest.



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