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

March 24, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-61-09.

Per curiam.



Submitted February 22, 2010

Before Judges Lisa, R. B. Coleman and Alvarez.

Defendant, S.J., appeals from a judgment of guardianship terminating her parental rights to her sons, K.M.S. (born July 13, 2005) and H.B.S., Jr. (born December 28, 2006), and her daughter, K.E.J. (born April 1, 2008).*fn1 Defendant argues that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of establishing all four prongs of the best interests of the child test. The law guardian supported termination in the trial court and, on appeal, joins the Division in urging us to affirm the termination order. We are satisfied from our review of the record that the Division presented sufficient evidence to support Judge Melendez's finding that all four prongs were clearly and convincingly established. We therefore affirm.


The Division received several referrals for defendant beginning in late 2005. Medical neglect of K.M.S. was substantiated in February 2006. A March 9, 2006 DYFS contact sheet entry reveals that K.M.S., who was then eight months old, had never received immunizations, and that defendant had been noncompliant with drug evaluations scheduled by DYFS. On April 17, 2006, a DYFS caseworker noted a lack of food in defendant's home for K.M.S. Defendant continued to resist the Division's efforts to obtain drug treatment for her, and on May 5, 2006, the Center for Family Services closed its case as "non-compliant."

A June 27, 2006 psychological evaluation by Larry N. Seidman, Ph.D. resulted in a diagnosis of mild mental retardation, chronic adjustment disorder with anxiety, and dependent personality disorder. Seidman also opined that defendant might be "self-medicating through the use of illegal drug(s)." He stated that defendant's intellectual and adaptive limitations met the criteria for the Division of Developmental Disabilities (DDD) for Limited Guardianship, and that defendant should seek this and other services through DDD. He recommended a psychiatric evaluation and in-home supportive and instructive counseling. In anticipation of potential support from DDD, in-home counseling, and appropriate psychiatric intervention, he expressed the view that defendant "appears" to have "the psychological wherewithal to maintain custody of her son [K.M.S.]."

On June 13, 2007, the Division received a referral expressing concerns about K.M.S. and the newborn H.B.S., Jr., who appeared "very undernourished and skinny." The referent expressed concern that defendant is "very slow mentally and has a lot of people living in the one bedroom apartment with her and she is afraid to put them out." A caseworker visited defendant's apartment complex and was advised by the manager that "there are all kinds of people coming in and out of the apartment and the neighbors are constantly complaining of a smell of marijuana from the apartment." The manager advised that eviction was imminent and commented that it was "obvious" that defendant was "mentally challenged." Additionally, the manager expressed concern about malnourishment of K.M.S.

After talking to the manager, the caseworker knocked on defendant's apartment door for fifteen minutes without any answer, although the caseworker could hear a baby crying inside. Fearing the infant was alone, the caseworker called the police. The police officer and caseworker continued knocking for ten more minutes, until defendant finally opened the door. When asked why she had not responded for forty minutes, defendant said she was asleep and did not hear the knocking. Although the infant did not appear malnourished and there was sufficient formula present for him, there was very little food for K.M.S. to eat and no diapers for either child. The caseworker informed defendant and H.B.S. that she could not leave without confirming that the children had enough food and diapers to last through the weekend. H.B.S. said he would go out to purchase them. Defendant stated she was receiving $654 in SSI benefits and $252 per month in food stamps and vouchers.

Thirty-five minutes later, the police found H.B.S. wandering in the parking lot, claiming he had no money to purchase the diapers. Defendant then called her cousin, M.T., who brought over some cereal and diapers. The cousin privately told the caseworker that defendant is "slow" and needs help caring for her children.

The caseworker was also concerned because defendant had apparently exhausted her financial resources for the month, even though it was only halfway through the month, and even though her rent was only $104 per month, which included hot water. Defendant could not answer the caseworker's questions regarding her finances. Later that day, the caseworker met with K.S., a relative of H.B.S., who expressed concern that defendant was unable to feed and bathe her children. The caseworker and defendant then went to the supermarket, where the caseworker purchased ninety diapers and food for the children. Upon returning to the apartment, M.T. informed the caseworker that defendant gives away all of her money to H.B.S.

On July 6, 2007, DYFS was informed by Family Preservation Services (FPS), to which DYFS had referred defendant, that, although the month was less than one week old, defendant was down to only $38 on her Family First Card and had no other money. Defendant said she had given the card to a family member who must have used all of the money. When confronted by the FPS worker about the seriousness of allowing family members to take advantage of her financially, defendant said she thought this was justified because they were part of her family. The FPS worker said that, despite repeated instructions, defendant could not comprehend instructions she was given. For example, defendant repeatedly left H.B.S., Jr. alone in the bathtub. The FPS worker told the DYFS caseworker that defendant "is just not getting it."

Between June 20 and July 10, 2007, FPS provided more than twenty-seven "face-to-face" hours with defendant, providing instruction on budgeting and parenting skills. The FPS report reveals that defendant did not respond to these instructions. On July 10, 2007, FPS terminated services because "they had concerns with the birth mother not understanding any of the assistance they offered... on parenting, care of the household and children."

On July 9, 2007, the Division removed the children from defendant's custody and placed them ...

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