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State v. W.B.

October 30, 2009

STATE OF NEW JERSEY, DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
W.B. AND D.E., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF J.T.F.B., A MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-34-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

September 23, 2009

Before Judges Cuff, Payne, and C.L. Miniman.

Defendants W.B. (the father) and D.E. (the mother) appeal from a Judgment of Guardianship terminating their parental rights to J.T.F.B. (J.B.), seeking reinstatement of those rights to avoid the planned adoption of J.B. by his current foster parents. We affirm.

I.

On December 7, 2005, the Office of Children's Services received allegations from an anonymous reporter that the mother was pregnant, smoking crack, and not receiving prenatal care and that there was domestic violence in the home.*fn1 On January 1, 2006, the mother gave birth to J.B. at a hospital in Gloucester County, and on January 3, 2006, J.B. and the mother tested positive for cocaine on urine drug screens.

On January 5, 2006, plaintiff Division of Youth & Family Services (the Division) obtained an order for the removal of J.B. from the care and custody of the father and mother because both mother and baby tested positive for cocaine following the baby's birth on January 1, 2006; the mother had inadequate prenatal care; and both parents had significant mental health histories, which would likely interfere with their ability to safely care for their infant child. Removal was also deemed necessary due to safety risks associated with the mother testing positive for Hepatitis C. Both parents were granted weekly supervised visitation and ordered to submit to mental health evaluations, as well as substance abuse evaluations and random drug screening. J.B. was placed in a Division-approved foster home where he remains to date. J.B. has never resided with his biological parents.

Following J.B.'s removal, both parents were referred for psychological and substance-abuse evaluations. On January 9, 2006, the Center for Family Services (CFS) evaluated the mother for substance abuse. She tested positive for barbiturates and was referred to Kennedy Behaviorial Health for Level II Intensive Outpatient Treatment (IOP). On the same day, CFS also evaluated the father, at which time he tested positive for cocaine and was referred to New Point Behavioral Health for Mentally Ill and Chemically Addicted (MICA) treatment on a Level I IOP basis.

On January 20, 2006, a parental fitness evaluation was conducted of the mother by Dr. Norman D. Schaffer, Ph.D., who diagnosed the mother with Posttraumatic Stress Disorder (PTSD) and Bipolar Disorder. Dr. Schaffer recommended intensive MICA treatment and supervised visitation with J.B. Similarly, on February 17, 2006, Dr. Schaffer conducted a parental fitness evaluation of the father, at which time Dr. Schaffer reported concerns about the father's denial of drug use and lack of willingness to follow recommendations for treatment. The father did not attend scheduled supervised visitations with J.B. on January 25, January 31, February 2, and February 27, 2006. The mother missed her scheduled visitation with J.B. on February 8, 2006.

On January 24, 2006, the return date of the Order to Show Cause, an order was entered continuing the Division's custody of J.B. The order provided weekly supervised visitation for both parents; required the Division to provide bus passes for visitation; ordered the father to enroll in an outpatient MICA program; and ordered the mother to enroll and complete recommended Level II treatment and MICA programs. The Division was further ordered to "evaluate paternal aunt, [C.B.], for possible placement."

On February 24, 2006, Dr. Edward Baruch, M.D., conducted the court-ordered psychiatric evaluation of the father, which resulted in a diagnosis of Obsessive Compulsive Disorder (OCD) and Adjustment Disorder with Depressive Mood. Dr. Baruch recommended medication for these conditions along with close monitoring and individual counseling. The father began treatment at Underwood Memorial Hospital on March 23, 2006. However, the father informed treatment providers that he did not intend to comply with services at this facility and was subsequently discharged at his request on April 18, 2006.

On March 14, 2006, the date of a scheduled case-management conference, the mother tested positive for cocaine. Both parents were again ordered to comply with recommended addiction and mental-health treatment and to participate in a parenting class. At this time, a new address was provided for paternal aunt C.B. and the Division was ordered again to assess her for possible placement. The mother began her treatment program at Kennedy Behavioral Health Services on April 10, 2006, but was discharged in May of 2006 for noncompliance with services and program rules.

On May 2, 2006, the parents stipulated that J.B. "was exposed in utero to illicit drugs. [The mother] and child tested positive at time of birth, and agree that these acts or omissions constitute abuse or neglect." An order was then entered requiring continued compliance by the parents with recommended services. On June 13, 2006, reports were received by the Division from FamCare, Inc., indicating both parents had completed their Parent Education Program.

In or about July 2006, the parents moved to Georgia, allegedly because of a lack of resources in New Jersey and frustration with the court system in regards to J.B. The parents notified the Division of their relocation on August 21, 2006. Caseworker notes indicate that the mother had requested flex funds for assistance with housing needs before this move. It does not appear that any such funding was provided.

On September 11, 2006, the court ordered the parents to identify and complete mental-health and substance-abuse treatment in Georgia and to obtain appropriate housing. The Division was ordered to contact the J. family as a possible placement for J.B. and to complete the request for an interstate evaluation.

On October 11, 2006, the Division sent a request for a home study of the parents to Georgia under the Interstate Compact on the Placement of Children (ICPC). On November 29, 2006, the mother notified the Division that the J. family had a special needs child in their home and would not be able to care for J.B.; the Division confirmed this information with the J. family.

On December 4, 2006, a concurrent permanency plan for termination of parental rights and adoption along with continued efforts towards reunification was entered because "the parents are not working towards reunification and have not visited the child in over 4 months." The judge noted J.B. had been in foster care since January 2006 and the foster parents wanted to adopt him. However, she also noted the parents might begin treatment services in Georgia in the near future, thus coming into compliance. On December 21, 2006, the foster parents informed the Division that they definitely wanted to adopt J.B. On January 4, 2007, a Georgia caseworker reported to the Division that both parents were receiving treatment for psychiatric issues, were cooperating with services, and were to be sent for substance-abuse assessments.

On March 5, 2007, both parents appeared by telephone conference call for the status hearing on the previously ordered concurrent plan, which was termination of parental rights along with continued efforts towards reunification. The judge gave the parents her chambers telephone number and on the record updated the address and phone number for the parents. During this hearing, the father inquired into the possibility of gaining custody of J.B. in light of their recent compliance with services in Georgia.

The Guardianship Complaint was filed on March 5, 2007, because of the parents' lack of compliance with services; lack of consistent contact with J.B., "although physically and financially able to do so"; continuing unresolved mental-health and drug-use issues of both parents; failure by both biological parents to make a permanent plan for the child; and ...


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