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

November 17, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-116-07.

Per curiam.



Argued October 21, 2009

Before Judges Axelrad, Fisher and Sapp-Peterson.

In this appeal, defendants seek review of a judgment terminating their parental rights to the children in question. After careful examination of the record in light of the issues raised on appeal, we affirm.


This guardianship action, commenced by the Division of Youth and Family Services (the Division), concerns three children: D.J. (born on April 17, 2001), A.S. (born on September 21, 2003) and T.S. (born on September 4, 2004). Defendant P.A. is the mother of all three children; defendant A.J. is the biological father of D.J.; and defendant R.S. is the biological father of A.S. and T.S. Defendant P.A. (the mother) is also the biological mother of four other children, none of whom were in her custody when this action was commenced; custody of her oldest child was granted to that child's father, and her parental rights to her next three children were involuntarily terminated in 1998.

The Division again became involved with the mother when the oldest of the three children in question, D.J., was born. Another referral was made when D.J. fell to the floor while defendant R.S. was giving him a bath in a kitchen sink on July 12, 2002. Allegations of abuse or neglect were unsubstantiated, but the Division concluded that the family's basement apartment was not large enough to accommodate all persons living there. The Division also learned at the time that defendant A.J. had been in an altercation with defendant R.S., and that P.A. had obtained a restraining order against A.J.

In December 2002, a Division caseworker visited the mother's home, observing it to be very messy and lacking a bathroom sink. A case plan was formulated and the mother agreed to contact the Division for services as needed.

On September 6, 2004, the Division was informed that the mother had given birth to T.S. two days earlier. A caseworker informed the mother that she had an open case in the Division's Newark office and was considered to be on missing status. The mother indicated she was living in the Elizabeth YMCA for nine months, and, before that, she had been residing with various friends. Because the mother was on missing status, she was not permitted to leave the hospital with T.S. At the same time, D.J. and A.S. were removed due to concerns about their living situation at the YMCA. The mother signed a fifteen-day consent form, and R.S. was sent for a substance abuse assessment.

The children were returned to the mother's custody on September 14, 2004, when the Division confirmed she had appropriate living arrangements at the YMCA. The Division began providing services. It supervised monthly visits and referred the mother for a psychological evaluation; the YMCA also referred the mother for counseling. During a monthly visit in March 2005, the mother informed a Division caseworker that she was leaving the YMCA because welfare would not pay for additional time. When the caseworker returned in April 2005, the mother and her children were no longer residing at the YMCA.

The Division investigated and learned from a welfare worker that the mother had been evicted from the YMCA due to a visit from an unauthorized party. The welfare worker advised the Division caseworker that the children were staying with their father at the home of a woman named Mary Smith.*fn1 The Division assessed the apartment and agreed the children could remain in the care of the mother and R.S. as long as they obtained beds for the children.

Following the home assessment, the Division had no contact with the mother until October 18, 2005. The mother did not enroll the children in school or daycare, obtain a job, or find appropriate housing. She later admitted her routine was to leave the house early in the morning without returning until evening; R.S. informed the Division that he worked nights and that the mother brought the children to him in the morning. The mother did not explain what she did during the day. She also refused to allow the Division to visit Smith's home after the meeting, claiming she had forgotten her keys.

When the Division visited Smith's home the next day, Smith stated that the mother and children had moved out three months earlier and the children had only been there for about one month. During that one month, R.S. lived with Smith and the mother resided with her boyfriend, Charles Jones.*fn2 Smith also confirmed that R.S. was unemployed.

Smith took the caseworkers to a motel in Elizabeth, where the mother and the three children were found residing in a room with another woman and her three teenage sons. The room was in disarray, with dirty mattresses, no sheets on the beds, and clothing strewn about the room. A hot plate was lying on a stand and a microwave was sitting on a small refrigerator. The caseworker described the room as "filthy, dirty and deplorable." The caseworker determined that the children were not safe with their mother because she did not have adequate housing, because of her transient living situation, and because she had not maintained contact with the Division. The Division effected an emergency removal of the children.


On October 20, 2005, the Division filed an action alleging the children were abused or neglected and seeking judgment awarding the Division the custody, care and supervision of the children. The trial court temporarily awarded the Division the custody, care and supervision of the three children; D.J. and T.S. were placed in one foster home and A.S. in another. A search was initiated for A.J.

Both the mother and R.S. failed to appear for a scheduled visitation with the children on October 25, 2005. The mother visited the children on October 28, November 9, and November 30, 2005; R.S. attended the first two visits. The Division referred the mother for parenting skills classes, individual counseling, and anger management classes. By way of an order entered December 1, 2005, the mother stipulated she "does not have suitable housing and caused her own termination at a shelter for not following rules."

Pursuant to court order, the mother attended a psychological evaluation with Dr. Karen Wells. The mother stated that she had been living in a shelter or with friends until April 2005. She explained that she did not enroll her children in daycare because she did not trust people around them.

Dr. Wells had previously examined the mother regarding the three older children who had been terminated. She made note that she had concerns similar to those indicated in her 1998 evaluation. Those concerns included homelessness, inappropriate or overcrowded living conditions, psychological and psychiatric issues, and an absence of relative resources. In addition, Dr. Wells observed that there had been "extensive periods when [the mother's] whereabouts were unknown" to the Division. Dr. Wells found the mother still "assumed minimal to no responsibility for the children's placement independent of her care, blaming [the Division] and others for their alleged inadequacies and failures."

Dr. Wells found that the mother "may experience periods of marked emotional, cognitive, or behavioral dysfunctioning" and "is likely to project blame onto others, assuming minimal responsibility for her actions," and that "rebuffs to [the mother's] self-esteem will likely disrupt her characteristic composure and elicit a range of unpredictable behavior such as anger, depression, moodiness, and social withdrawal." According to Dr. Wells, the mother "will need to display an ability to secure and maintain housing prior to any plans for favorable reconsideration of the children in her care," noting that "[w]hile [the mother] expresses intentions to secure housing, there are no indications that these plans are definitive." Dr. Wells reported that "[c]onsistent with information received from [the mother] during the December 1998 psychological evaluation . . ., she again expresses intentions to become gainfully employed and secure stable housing, with no indication that during this close to seven-year period she has been able to be successful in either." It is apparent, claims Dr. Wells, that the mother "is limited in her capacities to independently function and will continue to be dependent on external agencies to meet her needs, while simultaneously continuing to project blame and describe them as inadequate in meeting her needs." Dr. Wells observed that because the mother lacks natural or familial resources to assist her in finding housing, "it appears that she will not be able to resume care for the children in the foreseeable future."

In conclusion, Dr. Wells found that "[the mother]'s ability to assume care for herself is questionable, with even greater concern as it relates to her ability to attend to the needs of her children." Dr. Wells further opined that if reunification occurred, "multiple layers of services and support[] would be required," and "despite having received services through the years, [the mother] continues to display limitations in her ability to attend to the needs of her children." As such, Dr. Wells determined that "no support can be given for reunification at this time."

On December 15, 2005, Dr. Wells conducted a psychological evaluation of R.S. Dr. Wells observed that R.S. "related information to indicate that he was not only supportive of [the mother's] desire to assume parental care and responsibility for the children, but also that she had been a good mother to the children while they were in her care." R.S. "related information noting that he had an active day-to-day involvement in the lives of the children, although he did not view himself as being able to independently assume parental care." According to Dr. Wells, R.S., who resided with his grandparents and father, "d[id] not state a desire or intentions to assume a primary role with the children, preferring that this responsibility would be left to their mother." Dr. Wells opined that R.S.'s "deflated sense of self-worth and his expectation of failure and humiliation constrain his efforts to function without support," and that R.S. "sees no alternative but to depend on supporting persons and groups." Despite finding "no indications that [R.S.] would intentionally place the children at risk or harm for abuse or neglect," Dr. Wells determined "there are also indications that he cannot provide even minimal parental care and responsibility for them." As such, Dr. Wells concluded "there are no indications that within the foreseeable future, [R.S.] would be equipped with the means to assume primary parental care and responsibility for [the children]."

On March 29, 2006, the trial court entered an order, pursuant to N.J.S.A. 30:4C-11.3, which relieved the Division of the obligation to provide services aimed at reunifying the mother with her children. The order was based on the prior involuntary termination of the mother's parental rights to three older children. The court also ordered the mother and R.S. to obtain stable housing and employment and to comply with all services and recommendations emanating from their psychological evaluations.

On July 26, 2006, all three children were removed from foster care and placed with their grandparents, who expressed an interest in adopting the children. The children were removed on May 2, 2007, however, when the grandmother required medical attention.*fn3 T.S. was placed in a foster home in Newark, while D.J. and A.S. were placed in Jersey City. They have since been returned to their grandparents.

The trial court issued a permanency order on October 12, 2006, finding appropriate the Division's plan of termination followed by relative adoption. A.J. was not present at the permanency hearing, and R.S., who had been incarcerated on a drug charge,*fn4 appeared by telephone from jail. The order recited that "the parents have not made reasonable efforts towards reunification," as A.J. "has not made himself available for services," R.S. "was incarcerated and cannot plan for the children," and the mother "has a history of homelessness, abandonment, physical and substance abuse and mental health issues and has not been compliant with services, offered even though [the Division] obtained a No Reasonable Efforts Order."


On December 7, 2006, the Division commenced this action to terminate the parental rights of all three defendants. The Division initiated a search for A.J., but ultimately was relieved of its efforts to search further and a default was entered. Eventually, A.J. appeared.*fn5 Psychological evaluations of all defendants were conducted.

A trial was conducted on February 11, 13 and 15, 2008. Judge Callahan rendered an oral decision on February 25, 2008. He concluded that the parental rights of all three defendants should be terminated and memorialized that decision in a judgment entered on March 3, 2008.

All three defendants ...

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