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

October 7, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, FG-17-23-07.

Per curiam.



Argued September 21, 2009

Before Judges Rodríguez, Reisner and Chambers.

M.S. appeals from a March 31, 2008 order of the Family Part terminating her parental rights to her three children. We affirm.


Based on the record, we outline the factual and procedural history of this case. M.S. gave birth to A.S. on July 10, 2001, and to Ma.S. on October 27, 2004. On December 8, 2005, she gave birth to D.J. at Memorial Hospital in Salem County. Upon D.J.'s delivery, both M.S. and baby D.J. tested positive for marijuana. The next day, December 9, 2005, a Memorial Hospital worker reported D.J.'s and M.S.'s drug test results and "poor prenatal" care to the New Jersey Department of Human Services, Office of Children's Services. The report was referred to the Division of Youth and Family Services (DYFS).

DYFS caseworkers investigated the family residence on December 9, 2005, finding S.S., M.S.'s mother, at home caring for Ma.S. Ma.S. had a bruised nose, which S.S. reported to be from a fall. DYFS workers inquired about the sleeping arrangements in the two bedroom home, where M.S., S.S., "Uncle Pete," A.S., Ma.S., and now D.J. were to live. S.S. initially reported that Uncle Pete used one of the bedrooms, while S.S. and A.S. shared a twin bed in the other bedroom and M.S. and Ma.S slept on the couch. DYFS workers noted that there was no crib or bassinet, diapers, or baby clothing in the home. S.S. reported that she would be making those arrangements when M.S. and D.J. were discharged from the hospital.

When DYFS workers asked if the children's vaccinations were current, S.S. indicated that they were and reported that A.S. was on medication for diabetes. S.S. reported that several months prior, while the family was visiting a diabetic friend, A.S.'s blood sugar rose too high and that S.S. and M.S. gave him an insulin shot, using the friend's insulin and needle. S.S. reported that neither she nor M.S. followed up with a doctor about the incident.

When DYFS worker spoke with M.S. at the hospital, she admitted to smoking marijuana once while pregnant. M.S. also claimed that A.S. had diabetes, and that his pediatrician, Dr. Mallari, checked his blood sugar levels every day. M.S. reported that she had been unable to find affordable housing, and the DYFS worker indicated that social services could assist her. Based on the totality of the allegations, DYFS filed a notice of emergency removal pursuant to N.J.S.A. 9:6-8.29 on December 9, 2005.

DYFS workers removed Ma.S. from S.S.'s care and took him to Dr. Auerbach, where A.S. had also been taken to be examined. DYFS workers spoke with Dr. Mallari, who said that neither child had diabetes. Blood tests at the emergency room confirmed that neither child had any detectable disease or illness.

On December 13, 2005, DYFS filed a complaint against M.S.*fn1 alleging that, (1) both M.S. and newborn D.J. tested positive for marijuana, (2) M.S. received "poor" prenatal care for D.J. and was medically negligent in the care of her sons, and (3) that the family's living situation was overcrowded and inadequate. Judge Johnson entered an order on December 13, 2005, placing all three children in the custody of DYFS, pursuant to N.J.S.A. 9:6-8.1, et seq., N.J.S.A. 30:4C-12, and R. 5:12-1 et seq., for the protection and best interests of the children. Judge Johnson determined that reasonable efforts to prevent placement were not required by DYFS at that time because of an imminent danger to the children, pursuant to N.J.S.A. 30:4C-11.12.

On the return date of an Order to Show Cause on January 10, 2006, Judge Johnson ordered that custody of all three children remain with DYFS, and that M.S. have visitation with all three children. Judge Johnson also ordered M.S.: (1) to attend a psychological and parenting assessment and a substance abuse evaluation; (2) to submit to random drug screening; and (3) to attend parenting skills training. Additionally, the court ordered Ma.S. to receive an early intervention team evaluation, and a neurological evaluation to address night terrors. A.S. was to receive speech therapy and a child study team evaluation. The court ordered DYFS to investigate the possibility of placement with F.H. or J.C., family resources suggested by M.S.

On February 14, 2006, the court ordered M.S. to complete a Level I outpatient substance abuse program, and to attend AA/NA meetings. During the months of January and February, M.S. submitted to weekly drug tests with negative results, and her February 2006 monthly treatment report for substance abuse was satisfactory.

Immediately after the court hearing on February 14, 2006, M.S. fainted and was taken to a hospital. M.S. later reported that she had been stressed as a result of the hearing, seeing the father of A.S. in court, and having forgotten to eat for two days. On March 21, 2006, M.S. stipulated to using marijuana during her pregnancy with D.J. and to having had poor prenatal care, in violation of N.J.S.A. 9:6-8.21(c)(4). At a dispositional hearing on March 21, 2006, Judge Johnson ordered the children to remain in their placements at DYFS and for M.S. to continue her substance abuse program and parenting classes.

On March 20, 2006, and April 20, 2006, M.S. was evaluated by Janet Cahill, Ph.D., to determine whether M.S. could safely parent her children, specifically whether M.S. had impaired judgment regarding the medical needs of her children. Dr. Cahill administered Personality Assessment Inventory and a Parenting Inventory tests, interviewed M.S. and S.S., and observed the family interacting together. In her interview with Dr. Cahill, M.S. reported: (1) being previously admitted to a psychiatric hospital, (2) refusing to touch or pick up Ma.S. because she had been afraid of giving him a disease, (3) seeing large patches of skin falling off Ma.S., and (4) that A.S. had allergies and diabetes, despite being informed that recent tests showed this to be false. Additionally, M.S. reported being unaware of Ma.S.'s "obvious" developmental delays. Dr. Cahill diagnosed M.S. with schizoaffective bipolar disorder, referred her for a psychiatric evaluation, and recommended that M.S. not be allowed unsupervised contact with her children.

Dr. Cahill also expressed concerns about S.S.'s lack of judgment regarding M.S.'s mental health and behavior toward the children. Dr. Cahill considered S.S. to be an effective caregiver for the children, but felt she could not be an effective guard against the threat of harm to the children posed by M.S.

On April 10, 2006, the New Jersey Cares Institute conducted a physical and psychological evaluation of A.S. A.S. had reported to his foster mother that he was "allergic" and diabetic, and he frequently asked for medication. A.S. also exhibited regressive behaviors after visits with M.S., including escalated aggression. The report notes at several points that A.S.'s reported history of GERD, allergies, and lactose intolerance had not been clinically evident since placement with DYFS. The report does indicate that there is a record of A.S. having been prescribed allergy medication and an epi-pen prior to his placement with DYFS. However, a visit to a pediatric allergist on February 6, 2006 revealed no allergic reaction to a variety of substances.

M.S. completed her drug treatment program on May 9, 2006, and continued to test negative for drugs through June 28, 2006. M.S. completed the court ordered parenting program at Famcare on May 15, 2006. During visits with the children, staff noted that M.S. had difficulty controlling the children.

Dr. Brenda Porter, of the Children's Hospital of Philadelphia, Division of Neurology, evaluated Ma.S. on May 22, 2006. Her report indicated Ma.S.'s history of "minimal social interaction" as a result of his mother being afraid of his skin falling off. Dr. Porter reported that Ma.S. exhibited "mild developmental delay which may be environmental as it is improving now that he is in foster care." Ma.S. began developmental therapy at an Early Intervention Program on May 31, 2006.

At a compliance review hearing before Judge Segal, on May 30, 2006, the court ordered M.S. to submit to a psychiatric evaluation in response to Dr. Cahill's concerns. At another compliance hearing on July 26, 2006, M.S. was ordered to attend partial care and counseling. As ...

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