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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 21, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
S.W., DEFENDANT-APPELLANT, AND C.P., JR., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF M.P. AND C.P., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-35-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 5, 2010

Before Judges Axelrad, Fisher and Espinosa.

Defendant S.W. ("Samantha")*fn1 appeals from an order terminating her parental rights to two of her three children. We affirm, substantially for the reasons set forth by Judge Thomas Critchley in his oral decision on December 16, 2008.

We adopt Judge Critchley's factual findings and add only the following salient facts.

Samantha and C.P., Jr. ("Caleb")*fn2 are the biological parents of three children: M.P. ("Mary"), born March 18, 2004, C.P. ("Cathy"), born May 3, 2005, and a third child who was born after this litigation was commenced and is not a part of this action. Samantha and Caleb were never married and rarely cohabited. Each of them has an established history of substance abuse and only intermittent, limited success at achieving sobriety. Their relationship was volatile, marked by incidents of domestic violence and interventions by police and the Division of Youth and Family Services ("DYFS").

DYFS had its first involvement in this case before Mary was even born, when Caleb's mother contacted DYFS to report that Samantha was drinking heavily while pregnant. Samantha was taken to a hospital and found to have a very high blood alcohol level. She was referred to and attended an alcohol treatment program but declined further services from DYFS.

When Mary was just six weeks old, the police were summoned to the residence being shared by Samantha and Caleb to resolve a physical altercation prompted by Samantha's drinking. Samantha complied with DYFS's recommendation that she and Caleb obtain psychological, psychiatric and substance abuse evaluations. Mary stayed with her paternal grandparents until she was returned to Samantha approximately two weeks later. This was the first of several placements, both formal and informal, with the paternal grandparents.

Police were called to resolve another physical altercation between Samantha and Caleb in August 2004. Although Samantha was now two months pregnant with her second daughter, both she and Caleb were intoxicated.

On November 20, 2004, police picked up Samantha, who was extremely intoxicated, walking down the side of a road, carrying Mary. This led to the first of three emergency removals pursuant to N.J.S.A. 9:6-8.29 and 9:6-8.30. Following each of these removals, the allegation of neglect was substantiated against Samantha. After the first removal, the court placed Mary in her father's care. Samantha was granted only supervised visitation until March 17, 2005, when unsupervised visitation was permitted. She was referred to parenting classes and substance abuse treatment, which she completed. However, her individual therapy sessions were discontinued due to her failure to make progress in taking responsibility for her actions.

When Cathy was born, she was placed in Samantha's physical custody; Mary remained in her father's physical custody and both children remained in the care and supervision of DYFS. During the period from Cathy's birth until November 2005, there were ongoing conflicts between Samantha and Caleb regarding visitation issues and the fact that Caleb gave the children formula despite Samantha's desire that they only receive breast milk. At DYFS's recommendation, they agreed to participate in a family evaluation program. The parties made progress in mediation and agreed to sharing joint physical custody, with Mary living with Caleb and Cathy living with Samantha. When it appeared that the family had made satisfactory progress, the pending action was dismissed at DYFS's recommendation on September 22, 2005.

This progress was short lived. On November 6, 2005, when both children were staying with Caleb, Samantha became intoxicated, climbed through a window in Caleb's house and passed out on his bed. The police were called that night and again the next day when Samantha claimed that Caleb would not let her see the children. During the period from this incident until the second emergency removal on August 8, 2006, there were repeated reports that Samantha was intoxicated, including an arrest for public drunkenness, referrals to substance abuse programs and relapses.

Caleb contacted DYFS to advise that, on August 8, 2006, he had to take Cathy to the hospital where she was diagnosed with pneumonia and dehydration. Although he asked Samantha to meet him at the hospital, she was too intoxicated to get there. Despite Samantha's condition, Caleb left Cathy, then fifteen months old, in her care after Cathy was treated and released. DYFS substantiated neglect against both parents; removed Cathy from Samantha and Mary from Caleb. Both children were placed with their paternal grandparents. Following a court order on August 10, 2006 that granted custody, care and supervision to the paternal grandparents, both children remained with them until October 2007.

During the fourteen months from the second emergency removal until October 2007, Samantha was referred to and attended an inpatient substance abuse program, an outpatient substance abuse program and individual therapy through the Family Enrichment Program. She reportedly made good progress in these programs on her treatment goals; she participated in supervised visitation and then was allowed unsupervised visitation with her children. DYFS began working actively toward reunification and, pursuant to an order dated November 1, 2007, the children began living with Samantha.

This arrangement lasted less than four months. On February 4, 2008, Samantha was involved in a car accident and arrested at 2:30 a.m. for driving under the influence after drinking at a Super Bowl Party. It was reported that Caleb had been using cocaine at the same party. In this, the third emergency removal, the children were removed from Samantha's care. The paternal grandparents were granted physical custody of the girls while DYFS maintained care and supervision of them. On March 26, 2008, the return date of the order to show cause, these arrangements were continued.

Once again, the parents were referred to treatment programs and individual therapy. Samantha was granted supervised visitation, which she faithfully attended, showing strong parenting skills and genuine affection for her children. However, she was unable to maintain sobriety.

On July 3, 2008, after a fact finding hearing, the trial court found that both parents had placed the children at risk. Litigation to terminate parental rights commenced and a hearing was conducted on five days in October and November 2008.

C.P., Sr., the paternal grandfather, testified that he and his wife were committed to the girls, willing to adopt them and were eager to provide them a secure and stable home, establishing them in school and eliminating the interruptions in their lives. He also stated that he believed that he and his wife could adequately support the children's needs.

A psychologist retained by the Law Guardian, Dr. Rachel Jewelewicz-Nelson, testified that Samantha admitted that she had been an alcoholic since her twenties and had four D.W.I. convictions, with a fifth charge pending at the time of evaluation. Nonetheless, Samantha was optimistic about a six-month treatment program and her hope to live independently and raise her three children. In the bonding evaluation, the children were delighted to see Samantha but frequently did not respond to her instruction and acted defiantly toward her. Observations of the children with their grandparents reflected "a dynamic and comfortable relationship," in which the grandparents were well attuned to the children's wants and needs. Dr. Jewelewicz-Nelson cited Samantha's pattern of substance abuse relapses over eighteen years despite the considerable support and assistance she had received, including a relapse as recently as six months before the hearing. She concluded that Samantha's parenting deficits were not reparable in the near future and that terminating her parental rights would not do more harm than good because Mary and Cathy view their grandparents as their psychological parents.

Dr. Elizabeth Smith, a forensic psychologist retained by DYFS, and Dr. Susan Herschman, a psychologist retained by Samantha, also conducted psychological and bonding evaluations and made similar observations. Echoing Dr. Jewelewicz-Nelson's opinions, Dr. Smith concluded that another reunification attempt "might well endanger [Mary and Cathy] and has a high probability of failure [which] would be cruel and dangerous." Although Dr. Herschman made similar observations, she concluded that Samantha was on the road to recovery, that the children viewed her as the psychological parent and that terminating her parental rights would do more harm than good.

On December 16, 2008, the trial court delivered an oral opinion terminating the parental rights of Samantha and Caleb and an order of guardianship was entered. Caleb did not appeal from this order.

In this appeal from the order terminating her parental rights, Samantha raises the following issues:

POINT I

THERE WAS NOT SUBSTANTIAL, CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE TRIAL COURT'S CONCLUSION THAT TERMINATION OF SW'S PARENTAL RIGHTS WILL NOT DO THE GIRLS MORE HARM THAN GOOD.

POINT II

SW HAS NOT HARMED HER DAUGHTERS WITHIN THE MEANING OF N.J.S.A. 30:4C-15.1a(1).

POINT III

THE DIVISION'S PROPOSITION THAT SW CANNOT BECOME FIT TO PARENT REMAINS DEBATABLE AND, THEREFORE, THE TRIAL COURT'S DECISION IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

POINT IV

SW SUBMITS THAT THE DIVISION DID NOT EVEN SATISFY ITS BURDEN UNDER THE THIRD PRONG OF THE STATUTE IN THIS UNIQUE SET OF CIRCUMSTANCES.

N.J.S.A. 30:4C-15.1a authorizes DYFS to petition for the termination of parental rights in the "best interests of the child" if the following standards are met:

(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. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division 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.

The trial court carefully considered each of these prongs and cited adequate, substantial evidence in the record to support its conclusion that each of the prongs had been proven by clear and convincing evidence.

A trial court decision to terminate parental rights is subject to limited appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If supported by "adequate, substantial, and credible evidence in the record," the trial court's findings of fact are entitled to deference. Ibid. See also N.J. Div. of Youth & Family Servs. v G.M., 198 N.J. 382, 396 (2009); Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding[s]."). The family court's decision to terminate parental rights will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).

We agree with the trial court that this case presents the sad situation in which a mother who is genuinely interested in parenting her daughters has been proven to be unable to do so because of her inability to prevail over her alcohol addiction. Because we find that the trial court's findings are supported by adequate, substantial and credible evidence in the record, we affirm for the reasons set forth in the trial court's oral decision.

Affirmed.


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