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


April 12, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-50-09.

Per curiam.



Submitted March 24, 2010

Before Judges Axelrad, Fisher and Sapp-Peterson.

In this appeal, we examine a judgment that terminated the parental rights of defendants S.S. and J.A. to five children: M.A., who was born on July 1, 2000; J.A., born on January 11, 2003; F.A., born on May 22, 2005; L.A., born on April 26, 2006; and M.L.A., born on or about May 17, 2007.*fn1 We affirm.

The record developed at a three-day trial reveals that these defendants were involved with child protective services agencies not only in New Jersey but also in Pennsylvania and New York. Plaintiff Division of Youth and Family Services (the Division) first became involved on May 23, 2005, the day after defendant-mother gave birth to F.A., because both mother and daughter tested positive for cocaine at the New Jersey hospital where the child was born. Because the family then resided in Pennsylvania, the Division referred the matter to its Pennsylvania counterpart. Records of the Pennsylvania agency revealed that defendants consented to turning over custody to the children's paternal grandmother, R.C. The parties agreed that R.C. would not allow unsupervised visits without notifying the Pennsylvania agency, and defendants agreed to engage in evaluations and to comply with any further treatment recommendations. At times, however, R.C. did not comply with that agreement, defendants failed to complete a drug program, and the matter was soon transferred to the New York Department of Social Services because R.C. resided in Orange County, New York.

Defendants resided in New York when L.A. was born on April 26, 2006; again both mother and child tested positive for cocaine. Defendant-mother asserted that the positive drug test was a result of taking pain medication obtained from a friend. A few months later, New York police were summoned because defendants had left F.A., who was then fourteen months old, and L.A., then only three months old, in a vehicle "unattended, with only one small window open" on an eighty-eight degree day. The police reported the babies "were crying," and appeared "lethargic." According to police, L.A.'s face was "ashen," and both children "had beads of sweat on their forehead"; the oldest had "red blotchy skin." The investigation revealed that the children had been left unattended for forty-five minutes.

Defendants were arrested and charged with child endangerment. The two children were treated at a local hospital and the New York agency obtained custody of all the children, who were again turned over to the temporary custody of R.C.*fn2

Defendants went homeless for approximately seven months thereafter and R.C. struggled financially to support the children. The New York agency provided services, but defendants' attendance at mental health and drug programs was not exemplar. In May 2007, a New York family court ordered that the children be returned to the custody of defendants subject to agency supervision. On May 17, 2007, a caseworker visited defendants' home. She reported that the children appeared to have adjusted well and that the home was "clean and organized." Inexplicably, the New York caseworker was unaware that defendant-mother was pregnant with M.L.A., who was born within days of that visit. On May 25, 2007, defendant-mother informed the New York caseworker that she was in the hospital but did not mention M.L.A.'s birth.

In the months that followed, defendants continued to resist submitting to drug and alcohol evaluations. When the family moved to Budd Lake that summer, the New York agency referred the matter to the Division.

On August 13, 2007, a Division caseworker met with defendants, who agreed but later failed to submit to substance abuse evaluations. On October 5, 2007, two Division caseworkers and a substance abuse counselor made a surprise visit to defendants' home to obtain a urine screen from either or both parents. Defendant-mother was angered by the visit, but finally provided a sample in the presence of the drug counselor and a neighbor; she tested positive for cocaine.

The next day, the Division received a referral regarding a "Baby Girl Doe," who was brought to Hackettstown Hospital by an unidentified male. The baby was malnourished; although five months old, she weighed only nine pounds. The infant also had severe diaper rash, bald spots on her head, and rash and rug burn marks covering her entire body. The Division effected a Dodd removal pursuant to N.J.S.A. 9:6-8.29.

Upon further investigation, defendants initially denied paternity of the abandoned child. However, police learned that a neighbor had discovered the baby, M.L.A., soaked in feces and urine, lying in a Rubbermaid container under a bunk bed in defendants' trailer home. Apparently, defendant-father had gone fishing and the neighbor had promised him she would look after defendant-mother and the children during his absence. Upon observing defendant-mother leave the home with an adult male, who appeared intoxicated, the neighbor checked on the children and found M.L.A. in the dire condition described above. The neighbor and a male friend surrendered the baby to the hospital after convincing defendant-mother to relinquish custody.

Defendants were arrested and charged with endangering the welfare of their children. The other children were removed. Defendant-mother pled guilty to second-degree endangering the welfare of a child, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:24-4(a); the judge imposed a four-year prison term. Defendant-father pled not guilty and remained incarcerated while awaiting trial on the criminal matter when the trial in this matter occurred.*fn3

At the conclusion of the trial, which was attended by both defendants, the trial judge rendered an oral decision, concluding that the parental rights of both defendants to all five children should be terminated. In making his decision, the judge employed the four-prong test set forth in N.J.S.A. 30:4C-15.1(a), which requires that the Division prove by clear and convincing evidence:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm . . .;

(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).

Following the entry of judgment, both defendants filed appeals, which we consolidated. Defendant-mother argues that the judgment should be reversed because there was insufficient evidence from which the judge could find the presence of the third and fourth prongs; defendant-father contends that the evidence was insufficient for a finding on any of the four prongs.

Our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998). After carefully reviewing the record, we find insufficient merit in defendants' arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


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