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

March 30, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
N.J. AND D.R., DEFENDANTS-RESPONDENTS, AND S.W., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF D.J., N.D.R., AND N.R., MINORS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-098-08.

The opinion of the court was delivered by: Parrillo, J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 9, 2010

Before Judges Carchman, Parrillo and Ashrafi.

In this parental termination case, the Law Guardian for three children appeals from the Family Part's denial of her request to compel the prospective adoptive parents to continue visitation among the siblings as a function both of the court's parens patriae power and the children's constitutional right to associate with their siblings post-adoption. We affirm.

N.J. is the mother of three children, D.J., born in 1998, N.D.R., born in 1999, and N.R., born in 2001. S.W. is the father of D.J.; D.R. is the father of N.D.R. and N.R. The middle child, N.D.R., was born with cerebral palsy. He is a spastic quadriplegic, had reactive airway disease and suffers "moderate mental retardation."

This family first came to the attention of the Division of Youth and Family Services (DYFS) in January 2000, when N.D.R., then six-months old, sustained second-degree burns from a radiator after being left unattended. Neglect was substantiated against both parents, all three children were removed for a time, but they were later returned to their mother's care.

DYFS had no further contact with the family until August 2005, when D.J., then seven years old, and N.D.R., then four years old, were left alone in the family's apartment. When they were discovered by the police after an anonymous call, N.D.R. was wearing a dirty diaper and had cockroaches crawling on him. Pots on the stove and in the sink had maggots and mold, and there was a plate of insect-infested cat food on the floor. All three children were removed and put into foster care.

On August 25, 2005, DYFS filed a complaint pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12 alleging abuse and neglect of the children by all three parents. In February 2006, N.D.R. was placed at Matheny Educational and Medical Center (Matheny), a long-term specialized school and hospital for children and adults with medically complex developmental disabilities. In May 2006, D.J. and N.R. were placed in a foster home with a family friend, T.F.

On October 25, 2007, DYFS filed a guardianship complaint pursuant to N.J.S.A. 30:4C-15 to -20, seeking to terminate the parental rights of the three parents to D.J. and N.R. At a permanency hearing regarding N.D.R., concluding on November 16, 2007, the court agreed with DYFS that select home adoption was an appropriate permanency plan for him. Consequently, on December 16, 2007, DYFS filed an amended guardianship complaint seeking to terminate the parental rights of the parents to all three children.

On September 11, 2008, the mother, N.J., signed a voluntary surrender of her children D.J. and N.R., providing that they be adopted by T.F. The father of D.J., S.W., was never located, and default was entered against him on January 20, 2009. On the same date, D.R., the father of N.R., voluntarily surrendered his rights to N.R., conditioned on N.R. being adopted by T.F. Accordingly, the judge terminated the parental rights of N.J. to D.J. and N.R, and D.R. to N.R. in a judgment of guardianship entered on February 2, 2009.*fn1

Meanwhile, on November 21, 2008, DYFS advised the court that after consultation with its expert, its permanency goal for N.D.R. had changed from select home adoption to long term specialized care. The Law Guardian opposed the new permanency goal and requested parental rights be terminated. The judge ordered a consolidated permanency hearing and termination of parental rights trial, which was held in December 2008 and January 2009.

N.D.R.'s special needs were addressed at trial. On account of his cerebral palsy and spastic quadriplegia, N.D.R. required assistance with eating and was totally dependent on others for transfers, bathing and toileting. He was able to propel himself in a manual wheelchair, but required supervision to do so safely. N.D.R. had periodic behavioral outbursts where he uncontrollably cried, spit and scratched.

N.D.R.'s development improved at Matheny. In February 2008, his individualized education program noted that N.D.R. was "easy going" and "cooperative." He adapted well to new situations, made progress with speech and emotions and enjoyed participating in activities. A report by a Matheny psychologist around the same time noted that N.D.R.'s "communication and ...


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