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Division of Youth and Family Services v. R.A.A.

March 5, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-14-128-08.

Per curiam.



Submitted January 26, 2010

Before Judges Carchman and Parrillo.

In this termination case, defendant R.A.A. appeals from a December 3, 2008 Family Part order terminating his parental rights to his two children, R.N.A. and R.F.A, and awarding guardianship to the Division of Youth and Family Services (DYFS) with the ultimate permanent plan to be adoption by the children's maternal grandmother. We affirm.

These are the relevant facts adduced from the record. Defendant and A.R. are the biological parents of R.N.A. and R.F.A., born April 28, 2005 and October 6, 2006, respectively. A.R. voluntarily surrendered her parental rights to these children on December 2, 2008, so they could be adopted by their maternal grandmother, L.R., and neither A.R. nor her other child, C.L., are parties to this action. DYFS first became involved in this case on June 10, 2006, when A.R. was admitted to the emergency room and had her jaw wired shut. A.R. was four months pregnant at that time but refused to press charges against defendant. The case was then closed by the Division and the police.

On October 13, 2006, DYFS received another referral, this time from the Oaklyn Police Department. The police responded to a call from defendant stating he came home at around 2:45 a.m. and discovered that R.N.A. and R.F.A., who were then eighteen-months-old and one-week-old, were supervised only by C.L., who was then twelve-years-old. A.R., who was supposed to be watching the children, had abandoned the children at home to go out and purchase illegal drugs. When the police arrived at the residence, they discovered that there was dirt all over the floor and boxes stacked in the living room. The only furniture in the living room was a mattress.*fn1

Since A.R. had "gotten into altercations with the police," defendant and A.R. believed they "had to leave Oaklyn" and took the children to Philadelphia. The Philadelphia Department of Health Services (DHS) had an open case file for A.R. because A.R. and R.F.A. tested positive for cocaine and benzodiazepines at R.F.A.'s birth.

In January 2007, the Camden County Prosecutor's Office contacted DYFS because it was unable to locate the family. When a DYFS worker contacted DHS, she was informed that DHS was unable to complete the investigation because the family had moved back to New Jersey in January 2007, and DHS had lost contact with the family.

After the family moved back to Oaklyn, DYFS received another referral from the local police, who had responded to the family's home in New Jersey and were advised by defendant that the children were back in New Jersey. A DYFS worker attempted to contact A.R. in person but was unsuccessful after two attempts. The worker received a telephone call from A.R., however, which was "very verbally hostile to [the] worker."

A.R. refused to meet with the caseworker or tell DYFS where the children were.

On February 7, 2007, Judge Melendez issued an order to show cause placing C.L., R.N.A. and R.F.A. under the custody, care and supervision of DYFS. N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. She determined that removal of the children was necessary to avoid an ongoing risk to the life, safety or health of the children because of 1) allegations that A.R. had a child endangerment charge pending and an open case with DHS; 2) the domestic violence issues; 3) and A.R. had a substance abuse problem.

On February 13, 2007, defendant surrendered custody of R.N.A. and R.F.A., and the children were placed into foster care. Physical examinations of the children revealed that C.L. had scabies and eczema, R.F.A. had a fever, and R.N.A. had scattered lesions due to mastocytosis,*fn2 scabies and an ear infection. The children were placed with their maternal grandmother, L.R., in March 2007 with DYFS retaining legal custody. DYFS arranged for visitation for defendant and the children, but defendant did not visit the children on a consistent basis and only visited them with A.R.

Beginning in March 2007, DYFS provided services to defendant as a part of a plan for treatment to assist him with reunification with his children. Defendant's living conditions were a source of concern, as defendant's home in Philadelphia did not have a working kitchen, did not have heat, and all food was prepared on a burner plugged into the bathroom. The downstairs was filled with boxes and had no living space. Some steps to defendant's and A.R.'s upstairs were missing or broken. The house remained in this condition through December 2007, and in April 2008, a DYFS worker made arrangements with A.R. to inspect the house again, but no one was home when the DYFS worker arrived. The DYFS worker called defendant, and defendant never rescheduled an appointment with DYFS. Defendant was also still living with A.R. at this time.

Defendant was referred to a substance abuse evaluation, which he completed on March 29, 2007; a psychological evaluation, performed by Dr. Larry Seidman on June 23, 2007; anger management classes; parenting class; and individual and family therapy classes. Defendant did not attend his parenting, domestic violence and anger management therapy on a consistent basis, but defendant completed the services requested.

On April 19, 2007, however, drugs and a weapon were found in defendant's home, and defendant was charged with manufacturing a controlled dangerous substance (CDS); intentional possession of a CDS; possession of drug paraphernalia; possession of a firearm with the manufacturer's number altered; possession of an instrument of crime with intent; and altering/obliterating a mark of identification. Defendant pled guilty to the manufacturing charge and was sentenced to a period of house arrest.

As noted, defendant's psychological evaluation was performed by Dr. Larry Seidman on June 23, 2007. Dr. Seidman noted that defendant did not "present as paternally motivated or involved when discussing his children." Defendant also "indicate[d] a strong propensity toward social withdrawal and a desire to avoid responsibility." Defendant's personality test noted that he "tends to relate to others in a manipulative or exploitative fashion[,]" and he "reported some behavioral problems on the Alcohol Problems subscale." Dr. Seidman further determined that defendant "would prove resistant to both parent education and counseling intervention should the burden of raising his children fall upon him." Dr. Seidman concluded, "with a reasonable degree of psychological certainty that [defendant] does not present as capable of caring for and protecting his two toddlers and that it would not be in the children's best interests to be placed in his care without significant treatment intervention." He recommended anger management classes, parenting classes, individual and family therapy.

Defendant was referred to Velez Professional Services (Velez) for anger management and domestic violence counseling, beginning November 5 and 8, 2007, respectively. As noted, defendant did not attend therapy on a consistent basis but ultimately completed the services requested.

On June 20, 2007, following a fact-finding hearing, the Family Part found that both A.R. and defendant abused or neglected their children, in that they engaged in domestic violence in the presence of the children, A.R. and R.F.A. tested positive for drugs at R.F.A.'s birth, and the children were placed at significant risk of harm when they were left home alone.

A DYFS worker discussed "alternative permanent plans" for the children with L.R. in July 2007, and L.R. stated "she would adopt the children if [A.R.] and [defendant] cannot get them back[.]" DYFS's intent, should guardianship be awarded, was to have L.R. adopt R.F.A. and R.N.A. On December 28, 2007, a DYFS worker met with L.R. and informed her that DYFS's permanent plan for R.N.A. and R.F.A. was adoption.

At both the February 1, 2008 and February 25, 2008 hearings, the trial judge found that DYFS's plan for termination of parental rights followed by adoption was appropriate and acceptable; she determined that it is not and would not be safe to return the children home in the foreseeable future because A.R. had not completed services, defendant had pending drug charges, and neither parent had stable housing. The judge further held that DYFS had provided reasonable efforts to finalize the permanent plan, including reunification where appropriate, substance abuse and psychological evaluations, parenting time, counseling and anger management classes. DYFS was ordered to terminate parental rights no later than March 25, 2008.

On March 18, 2008, DYFS filed a verified complaint for guardianship with respect to R.N.A. and R.F.A. At the time the complaint was filed, A.R. and defendant continued to live together in their home in Philadelphia. On November 7, 2008, A.R. tested positive for cocaine and morphine in an in-court urinalysis test.

At trial, Lyanna R. Torres, a caseworker assigned to R.N.A. and R.F.A. since April 2008, indicated that A.R. preferred that her mother, L.R., adopt the children. After describing DYFS's interactions with the family and the factual history of defendant's progress, or lack thereof, during the time preceding trial, Torres noted that the Child Placement Review Board agreed with DYFS's plan that R.N.A. and R.F.A. should be adopted by L.R. On cross-examination, Torres confirmed that the children are currently "doing fairly well" with, and are "very close to their grandparents."

Dr. Vivian Rodriguez-Silverstein, a psychologist, who conducted psychological evaluations with A.R. and defendant as well as bonding evaluations with defendant and the children and the children and their grandparents, was proffered by DYFS. She first stated that defendant did not think that the counseling programs, in which he was enrolled, "related to him or his life or experience at all. That he completed it, because he was asked to do it." Defendant believed that removal of the children from his care was "an abuse of power" by the Division. Defendant did not have a specific plan as to how he would care for the children, and numerous psychological tests indicated that defendant "denied any urgency or any real significance to [A.R.]'s drug use. . . . [I]t was clear that . . . he is [in] denial in terms of the severity and the consequences of the dangers that that poses to the children."

According to the witness, defendant and A.R. have a "co-dependent relationship." Upon being asked whether she would have any concerns if A.R. was "out of the picture" and defendant raised the children by himself, Dr. Rodriguez-Silverstein responded:

I would have several concerns. Again, to what extent would [A.R.] be really completely out of the picture would be one, given the nature of their relationship.

Secondly, . . . he has not been the primary caregiver of the children. So, I have concerns of whether he's ever been really in the position of primary caregiver and whether he can, in fact, do it and what -- he has not indicated of any other plans or any other support systems that would allow him to do that.

The third question that I have again has to go to credibility issues and [defendant]'s lifestyle itself. The issue of the criminal case involving the drugs and his explanation and some of the inconsistencies in his reporting raises doubt and . . . that is another source of concern and risk for the children.

In commenting on the bonding evaluation that she performed, Dr. Rodriguez-Silverstein observed that, although the children were affectionate with defendant, the children were "confus[ed] in terms of [defendant]'s role, since [one child] called him at one point by his first name and then other times [']daddy.[']" She found this "significant," because "[m]ost children don't call their parents by their first name, they usually refer to them as daddy. And in this particular situation, . . . [i]t shows a certain confusion or possible confusion in the mind of a young child about the role of this person."

Dr. Rodriguez-Silverstein concluded that the children viewed their grandparents as their "psychological parents"; the children perceive the grandparents as "the main parental figure." The children also "have a very secure bond" with their grandparents; when the children were with their grandparents, "they weren't testing the limits as much[,] . . . they knew exactly what to do, it was . . . a smoother kind of observation in terms of . . . the children not needing necessarily many instances of direction or correction or limit setting." Dr. Rodriguez-Silverstein opined that it would cause "considerable distress" and "harm" if the children's relationship with their grandparents was to be severed; "the attachment is much more secure [with their grandparents] and they are in a stable healthy situation." The grandparents were "on top of the needs of the children, . . . each one of them as individuals[.]" In contrast, she was "not sure [defendant] would be able to provide an equally or at least acceptable level of care and security for them."

Defendant was called as a witness by DYFS. He first stated that he is currently on probation and was under house arrest until February 2009. Defendant is currently self-employed as an electrician, and, according to defendant, he no longer lives with A.R. Defendant, however, recently had lunch with her, drove her home and frequently drives with her to visit the children. He denied knowing of A.R.'s drug problem prior to R.F.A.'s birth, but conceded that he knew of A.R.'s drug problem after R.F.A.'s birth.

Defendant failed to indicate that his house was suitable for the children. He also admitted leaving the children unattended with A.R., knowing that she was addicted to drugs, because he did not think she would leave the children unattended to "go off and buy drugs[,]" and she "wasn't required to go to no program at that time[.]" Finally, defendant stated that he had "no problem" with his children being with their grandparents, and he believes that they are "well taken care of over there[.]" Defendant, however, "would rather have them home with me."

Defendant offered Dr. Ange Puig, a psychologist, as an expert. Dr. Puig's "major concern" was that defendant viewed A.R. as "an adequate parent." She stated, however, that she conduced an evaluation of defendant, and "[t]here was a clear connection and positive bonding between the two children and [defendant]." Likewise, defendant's behavior during the evaluation was "appropriate," and "he was able to set limits" with the children. The children sought his attention in a "positive way," and the children sought "nurturance" from defendant. Dr. Puig concluded that there was ...

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