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

October 28, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-27-07.

Per curiam.



Submitted: October 15, 2009

Before Judges Axelrad and Fisher.

M.J., the mother, and K.B., the father, appeal from the Family Part orders of June 16, 2008 and June 25, 2008, respectively, terminating their parental rights to their then seven-year-old daughter, Ku.B., five-and-a-half-year-old daughter, Ka.B., four-and-a-half-year-old son, Mi.B., and twoand-a-half-year-old son Ma.B., and awarding guardianship of the children to the Division of Youth and Family Services (DYFS) following a contested hearing.

On appeal, both parents contend that DYFS failed to prove by clear and convincing evidence the requisite statutory prongs to establish that the best interests of their children required severance of their parental ties. The Law Guardian supports termination of both parents' rights to all four children. After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part, and remanded, 179 N.J. 264 (2004).

M.J. and K.B. met in 2000 and began living together in 2002. The couple separated in 2003, and the record is unclear as to when they shared a residence thereafter. M.J. and K.B. married on January 27, 2007.

DYFS first became involved with M.J. on June 6, 2001, when it received a referral that she tested positive for cocaine after delivering Ku.B. DYFS referred M.J. to an out-patient program, which she failed to complete. On November 14, 2002, DYFS received another referral that M.J. had delivered a child, Ka.B., and both mother and child tested positive for cocaine. It appears from the record the parents shared joint legal custody of the children, with K.B. having physical custody, and for a period of time the children lived with their paternal grandmother, R.T.

M.J. apparently disregarded the suggestion of a DYFS case worker in January 2003 that she be assessed and treated for drug use, because when she gave birth to Mi.K. on December 29, 2003, both of them tested positive for cocaine. She then agreed to cooperate with DYFS' plan for her to enter a drug treatment program with K.B. assuming responsibility for the children with the assistance of his mother while M.J. attended treatment.

However, according to Doreen Kane, the DYFS caseworker supervisor, M.J. failed to complete any of the programs at that time.

On February 19, 2004, R.T. complained to Kane that despite the children being in K.B.'s physical custody, they spent the majority of their time at her house and she was frustrated with K.B.'s lack of financial assistance and care. In response to R.T.'s complaints, DYFS tried to contact K.B. in order to assess the situation but he had moved and had not updated his contact information. As a result, DYFS was not able to contact him from February 2004 to May 2004, during which time the children lived with their paternal grandmother.

In March 2004, M.J. completed a twenty-eight day in-patient program but, despite DYFS' diligent efforts, she missed four appointments and did not attend the recommended out-patient treatment program. Because of M.J.'s non-compliance, DYFS had strong concerns that she was using drugs and feared for the safety of the children. On June 24, 2004, DYFS filed a verified complaint against both parents alleging abuse and neglect of the three children. Pursuant to an August 9, 2004 order, the care and supervision of the children was transferred to DYFS. The order further required that K.B. complete a psychological evaluation, which he did, and M.J. complete a drug treatment program, which she did not. M.J. admitted she continued to use cocaine and, in fact, her drug screen came back positive for cocaine on August 11, 2004. As a result, DYFS determined that M.J. was not to be left alone with the children. Kane testified that when she discussed this with K.B. on August 12, 2004, he was surprised that M.J. was using drugs.

An order was entered on October 6, 2004, awarding K.B. legal and physical custody of the children and barring M.J. from K.B.'s residence and from any contact with the children until she completed an in-patient drug treatment program. Periodic visits were made to inspect K.B.'s home. On one occasion in January 2005, the caseworker met M.J. there as she was exiting the residence. ...

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