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New Jersey Division of Youth and Family Services v. R.V.

May 11, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-112-07.

Per curiam.



Argued April 1, 2009

Before Judges Stern, Waugh and Ashrafi.

Defendant mother R.V. appeals from the decision of the Family Part terminating her parental rights to her son, L.C.*fn1 We affirm.


L.C. was born prematurely on September 22, 2000. The Division of Youth and Family Services (DYFS) was notified by the hospital because R.V. was homeless. After finding that R.V. was receiving assistance from the Bergen County Board of Social Services, DYFS decided not to open a case for investigation at that time.

DYFS's next contact with the family came in February 2003, after receiving a referral through the Dumont Police Department. A referent had called police "to report seeing a woman striking a small child on his back in the back seat of her vehicle." The police forwarded the referral to DYFS.

DYFS made contact with R.V., who admitted to "slapping the child because he [] was 'out of control.'" R.V. stated a woman nearby had criticized her for hitting L.C.; so she told the woman to "go fuck herself." R.V. described L.C. as a "spoiled little shit," who "behaves badly on a regular basis." R.V. stated that she had spoken with L.C.'s pediatrician about his behavior, but was told his behavior was not necessarily indicative of a medical problem. R.V. informed the DYFS worker that she was unemployed. In her report, the DYFS worker suggested that the L.C. get a developmental workup and that the mother should be re-visited at her home. Abuse was not substantiated against R.V. because she "did not cause injury to the child and child made no disclosure."

On October 25, 2005, an anonymous referent informed DYFS that R.V. was neglecting L.C. The referent stated that R.V. "uses crack cocaine and gets high in front of [L.C.]" and would leave L.C. with her roommate for two to three days at a time so that she could "get high." The referent had visited the family's house early in October and reported "dirty dishes sitting in the sink for three months, clothes all around, plates of food on the table and cat feces throughout." The referent was also concerned that L.C. "may be slow because of his mother's drug use during her pregnancy."

The next day, October 26, 2005, two DYFS workers went to R.V.'s home to follow up on the referral. The workers reported the home to be hazardous and deplorable. Clothes, toys, dirty dishes in the sink and in the tub, plates of food all over the home, what appeared to be stuffing from a toy scattered about the home, fruit flies were flying about the home, extension cords, unknown where they were leading to, and the home smelled of body odor.

The apartment had one bedroom with two beds. L.C.'s bed was "broken and unusable"; so L.C. and R.V. shared a bed. Two men were in the residence; one did not identify himself. The other, S.W., reported that he would care for L.C. on occasion and slept there four to five nights a week. R.V. also informed DYFS that L.C. had not been to school for several days because he was undergoing testing because of possible developmental delays. According to R.V., L.C. had speech and learning disabilities, was "half-blind" in his left eye, and "both of his feet turn in."

R.V. reported that L.C.'s biological father was incarcerated, most likely in Florida. She informed the DYFS workers that she is taking medication for depression, anxiety, panic attacks, and Post-Traumatic Stress Disorder. [R.V.] report[ed] that she is Bipolar and [] takes the following medications: Prozac, Klonopin, Zyprexa, and Trazodone for her depression and anxiety. . . . [R.V.] report[ed] that she has hepatitis C. . . . Worker asked [R.V.] how her home became deplorable. [R.V.] reported, "I'm lazy and tired from my medications." [R.V.] report[ed] that she supports her son by [Temporary Assistance for Needy Families] and food stamps.

R.V. voluntarily submitted to a urine screen; S.W. refused. R.V. admitted to using cocaine two to three days earlier. Her urine screen came back positive for cocaine use.

DYFS substantiated neglect because of R.V.'s admitted use of cocaine while caring for L.C. and removed L.C. the same day. The hazardous and deplorable condition of the home was also cited as support for removal. According to DYFS, R.V. signed a "Dodd letter"*fn2 acknowledging that L.C. was being removed from her care without a court order. L.C. was placed in a foster home.

On October 28, 2005, DYFS filed an order to show cause requesting custody, care, and supervision of L.C. The same day, the trial court granted DYFS's application. Also on October 28, 2005, R.V. submitted to a court ordered drug screen which came back positive for cocaine use.

A DYFS caseworker contacted L.C.'s optometrist on October 28, 2005, to discuss his possible vision problems. The receptionist informed DYFS that L.C. was last seen on June 2, 2005, when he was referred to a specialist for surgery. There was no indication whether R.V. had followed through with the referral. The receptionist also reported that, despite numerous messages left for R.V., she had failed to pick up L.C.'s new glasses.

The Audrey Hepburn Children's House conducted a learning assessment of L.C. on November 10, 2005. The assessor concluded that L.C.'s academic readiness skills are scattered for a child his age, ranging from the average range to the very delayed range. [L.C.]'s knowledge of basic concepts such as colors, letters, and numbers, is very delayed for a child his age. Additional concerns include [L.C.]'s delays in speech/language development, his fine motor skills, and his marked weakness in attention/concentration.

R.V. attended a substance abuse assessment at Preferred Children's Services on November 15, 2005. R.V., who was forty-one at the time, stated that she was introduced to cocaine at thirty by her friends and started smoking crack-cocaine when she was thirty-eight or thirty-nine. Following the assessment, it was recommended that R.V. engage in a "partial hospitalization MICA [Mentally Ill Chemical Abuser] program."

On November 17, 2005, the return date of the order to show cause, the trial judge granted DYFS continued custody of L.C. He also ordered R.V. to attend psychological evaluations and substance abuse treatments in addition to submitting to random urine screenings. R.V. was granted supervised visitation with L.C. DYFS was also ordered to explore the possibility of arranging for telephone contact between R.V. and L.C. The same day, R.V. voluntarily waived her right to a fact finding hearing and stipulated that she had used cocaine on October 23, 2005, while L.C. "was in her care, placing him at risk of harm."

On December 7, 2005, an individualized education program was prepared for L.C. by the Passaic Board of Education. The report stated that L.C.'s "cognitive skills tested lower than expected due to significant behavioral interference oppositionality." Further, L.C. "appear[ed] to have fine motor and visual motor difficulties. [L.C.'s] cognitive profile coupled with his low tolerance for frustration may impact on his progress at school." L.C. was referred to occupational therapy, speech therapy, and counseling. He was categorized as eligible for special education because of his multiple disabilities including both learning and emotional disabilities.

R.V. enrolled in the Bergen Regional Medical Center's MICA program on December 15, 2005. She relapsed on December 25, 2005, and January 1, 2006. The program reported on February 13, 2006, that R.V. had been tested "almost daily" since her last relapse and all her urine screens had been negative. The program also reported that R.V. was "compliant with the rules of the program. Her attendance has been good. . . . She has been punctual to her groups and has been an active participant in groups."

DYFS was informed by a worker at the visitation program that R.V. had to cancel her visitation with L.C. on February 6, 2006, because she had been imprisoned. The worker also told DYFS that on one occasion L.C. had come to a visitation session with a cold. The worker noted that R.V. "won't blow [L.C.]'s nose during visitations" and that "it seems like the mother has no control over [L.C.]."

DYFS was informed by the Bergen County jail on February 10, 2006, that R.V. had been previously charged with failure to give a controlled dangerous substance to the police and driving with a suspended license. She was incarcerated because she had failed to pay the fines associated with the above charges. R.V. was released the same day on her own recognizance. Because of her incarceration, R.V. was discharged from her MICA program. Upon her release from jail, R.V. reapplied for and was readmitted to the MICA program on March 30, 2006.

On May 1 and May 8, 2006, Dr. Kenneth Schulman conducted a psychological evaluation of R.V. Dr. Schulman concluded that R.V. is experiencing psychological difficulties mild to moderate intensity and that her functioning is consistent with psychoactive substance abuse in remission and with Axis II designations of Histronic Personality with Obsessive Compulsive and Narcissistic Personality Features. It is recommended that [R.V.] complete the program in which she is participating and that she demonstrates compliance with all recommendations including those for aftercare, should there be any. Psychotherapy is recommended over and beyond the substance abuse treatment and should focus on identifying inefficient coping mechanism that trigger relapse as well as on resolving issues that remain from a psychologically chaotic and abusive background.

It is the examiner's opinion that [R.V.]'s visits with [L.C.] can be liberally increased as long as she remains substance free and as long as she remains complaint with all treatment recommendations.

R.V. received a psychiatric evaluation on May 21, 2006, at the Hackensack University Medical Center from Dr. Ramakrishna Gudapati. He diagnosed R.V. with major depressive disorder and obsessive compulsive disorder, in addition to noting her history of cocaine dependency. Dr. Gudapati reported that R.V.'s "thought process was logical and goal directed, no paranoia/delusions, no evidence of psychosis at present."

On July 11, 2006, R.V. provided DYFS with the names of L.C.'s godparents as individuals who might be able to supervise increased visitations with L.C. DYFS also investigated the godmother as a possible placement option for L.C. The godmother stated, however, that she could not care for L.C. because she had three small children of her own.

On July 14, 2006, DYFS received a letter from Children's Aid and Family Services, Inc., memorializing R.V.'s completion of a parenting skills program. She had attended nine of the twelve sessions. On July 27, 2006, DYFS received a letter from the MICA program noting that R.V. had completed the program on June 6, 2006, with a referral to individual counseling. R.V. was described as being very cooperative and reported to have made consistent efforts to participate in group sessions. Additionally, R.V.'s random drug screenings had all returned negative for cocaine use.

On October 26, 2006, the trial court approved a permanency order that set reunification of L.C. with R.V. as the appropriate and acceptable plan. DYFS was ordered to provide the family with services to work towards transitioning L.C. from foster care back to his mother's custody.

In November 2006, R.V. began overnight unsupervised visitations with L.C. Initially, the visits went well.

However, on at least one occasion, R.V. did not administer L.C.'s nebulizer treatments as evidenced by the fact she returned the medication unused to the foster mother. Additionally, R.V. did not make L.C. complete his homework during their visits. The overnight visitations were suspended in early January 2007 because R.V. had been released by her individual therapists for failure to attend appointments.

On January 5, 2007, a DYFS worker visited R.V. at home. R.V. answered the door wearing only a t-shirt. R.V. "was wearing no underwear and appeared to be distorted." She informed the caseworker that she "wasn't doing well." The caseworker told her that she needed to have a urine screen that day. R.V. told the worker she would meet her at the DYFS office to compete the urine screen but never appeared for the screen.

R.V. failed to attend a substance abuse evaluation on February 2, 2007. Later that same day, during a visitation session with L.C., a DYFS caseworker noted that R.V. was acting "irrationally [and] using bad language while [L.C.] was in the room." The session was stopped due to R.V.'s behavior. A urine sample taken from R.V. that day tested positive for cocaine.

On February 6, 2007, a new permanency order was issued by the trial court setting termination of parental rights as the appropriate and acceptable plan. R.V.'s noncompliance with therapy and positive urine screens were cited as the reasons for changing the permanency plan. Additionally, the trial judge drew negative inferences from R.V.'s failure to submit to urine screens on January 1, January 25, January 29, and January 30, 2007. Additionally, R.V.'s telephone contact with L.C. was suspended because she had been calling the foster home at inappropriate times, crying and yelling at the foster mother.

R.V. was re-enrolled in the Bergen Regional Medical Center MICA program on March 29, 2007. Prior thereto, R.V. had moved to Toms River and was residing with her fiancé, P.T. R.V. completed the MICA program on May 15, 2007. It was recommended that R.V. seek individual therapy as well as continue in Narcotics Anonymous. R.V. enrolled in individual therapy on June 5, 2007.

DYFS filed for guardianship of L.C. on April 3, 2007.

Dr. Zisalo Wancier performed a psychiatric evaluation of R.V. on June 13, 2007. Dr. Wancier diagnosed R.V. with major depressive disorder and personality disorder (NOS), but ruled out bipolar disorder.

On July 18, 2007, R.V. called the DYFS office to cancel her visitation with L.C. on the following day. According to R.V., she had a large abscess on her leg and had developed cellulitis. She said she was disoriented because the doctor had prescribed narcotics to dull the pain. This was confirmed by R.V.'s individual counselor, who had been provided a list of medications prescribed to R.V. at the time. On July 23, 2007, R.V.'s counselor told DYFS that all of her drug screenings since entering the program in June had been negative.

At a visitation session on August 2, 2007, R.V. greeted L.C. by asking him, "What the fuck do you have on your feet?" R.V. then became angry when the visitation aide would not allow the visit to take place in the parking lot so that L.C. could play with the two dogs R.V. had brought with her. She made disparaging comments about the aide and DYFS. Subsequent visitation sessions were appropriate and R.V. interacted well with L.C.

A DYFS caseworker informed R.V. on September 6, 2007, that the compliance review had to be postponed because a possible address had been found for L.C.'s father and DYFS needed to attempt to serve him with the guardianship papers. R.V. became very upset and said that the father was a "very angry person and a very dangerous man." She worried that he would "come to find her and will kill her." She also told the worker that she believed he had fled the country.

On September 10, 2007, a bonding evaluation was conducted by Dr. Natalie M. Barone between L.C., R.V., and R.V.'s fiancé, P.T. In her report, Dr. Barone noted that during the session, R.V. "demonstrated poor boundaries and was quite intrusive with [L.C.]" Throughout the session, R.V. accused L.C.'s foster mother of stealing from him and taking the toys and clothes that she bought him. At one point, R.V. noticed a rash on L.C.'s stomach. R.V. pulled his shirt up, told him to stand still, and started taking pictures of his stomach. At this point, L.C. exclaimed: "Stop! You're scaring me." R.V. continued to take pictures.*fn3

In her report, Dr. Barone discussed the behavioral delays discovered when L.C. was removed from his mother. She theorized that:

[s]ome of [L.C.]'s emotional problems and development delays were likely due to the neglect that he endured while in the care of [R.V.] during his first five years of life. Given [L.C.]'s special needs, he requires a more sophisticated ...

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