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New Jersey Division of Youth and Family Services v. M.H.

June 23, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-141-09.

Per curiam.



Submitted: May 12, 2010

Before Judges Cuff and C.L. Miniman.

Defendant M.H. (father) appeals from the termination of his parental rights to M.H., Jr. (fictitiously Mario). Defendants M.F. (mother) and A.C., who was named as the father on Mario's birth certificate, have not appealed the termination of their parental rights to Mario.*fn1 Because plaintiff New Jersey Division of Youth and Family Services (the Division) proved all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, we affirm.


In October 2007, the mother gave birth to Mario, who was born prematurely at thirty-three weeks and weighed just four pounds, nine ounces. In the year preceding his birth, the mother stated she had participated in a substance-abuse program at Kaleidoscope Health Care where she was prescribed methadone to treat her heroin addiction. The mother had used methadone during her pregnancy, tested positive for cocaine the day before she gave birth, and admitted to using heroin on the day Mario was born. The father was absent from the hospital.

The day after Mario's birth, the Division received a report from a staff member at St. Joseph's Hospital in Paterson. The reporter informed the Division that Mario had been born the previous day at Palisades Medical Center in North Bergen and had been transferred to the Neo-Natal Intensive Care Unit (NICU) at St. Joseph's Hospital. The reporter informed the Division that Mario tested positive for opiates and that the mother admitted to snorting heroin shortly before she gave birth.

That same day, a Division caseworker met with the mother, who was married to A.C. She identified Mario's father to the caseworker, but said that he was no longer her boyfriend. She stated that she and the father were having "a lot of problems" at the time she found out she was pregnant, but she remained hopeful that the father would be involved in Mario's life. She provided the Division with contact information for the father. The Division effected an immediate Dodd*fn2 removal.

Mario remained at St. Joseph's Hospital for several weeks. Initially, the medical staff treated Mario for neonatal absti- nence syndrome, addressed a sepsis problem with antibiotics for the first seven days, and monitored his grade one intracranial hemorrhage with ultrasound. On October 8, 2007, the medical staff transferred him from the NICU to the Intermediate Nursery. By October 10, the Division determined that Mario would require special medical attention upon release from the hospital because of his medically fragile status and undertook efforts to secure a Special Home Service Provider (SHSP) foster placement. The Division caseworker advised the mother of this on October 11.

At the mother's request, the Division asked the maternal grandmother on October 18, 2007, if she would be willing to assume custody of Mario upon his discharge from the hospital. She declined, explaining that her medical conditions would make it "difficult for her to care for the baby." She stated that her arthritis caused her arms to swell and she frequently had migraine headaches. However, she would be willing to assume custody of her three older grandchildren if the Division needed to place them. The Division determined at this time that the maternal grandmother had no history with the Division and no criminal record.

The following day, a family team meeting was held at the Division's office attended by the mother and the maternal grandmother. The mother had advised the father of this meeting, but he did not attend, even though "he stated that he [would] come." The caseworker had also called the father before the meeting began and left a "detailed message informing him about the meeting." The mother stated that the father introduced her to heroin and used drugs with her. She further stated that the father's criminal history included arrests for drugs and an assault and that he was on probation at that time. The Division asked the mother and maternal grandmother if any family members might serve as a resource placement for Mario. Although the mother again expressed that she wished her mother would do so, the maternal grandmother firmly stated that she was unable to serve as a placement for Mario "because of her arthritis," but reiterated she would assume physical custody of her three older grandchildren if necessary.*fn3 On October 23, Mario was transferred to the Newborn Nursery. By October 30, the hospital medical staff had been successful in weaning Mario off Phenobarbital.

On October 26, 2007, the Division filed a verified complaint for the care, custody, and supervision of Mario and the mother's three other children. The complaint named the mother, the father, A.C. and S.R. as defendants. Because we are concerned only with the termination of the father's parental rights to Mario, we will confine our discussion of the facts to those bearing on the issues raised on appeal. The judge signed an order to show cause that same day granting legal custody of Mario to the Division, with physical custody continuing at St. Joseph's Hospital.

At this hearing, the mother and A.C. were present; the father was not, even though the mother had advised him of the date. The Division caseworker explained to the judge that the Division had made several unsuccessful attempts to contact the father, and the mother also indicated that she had sent the father a text message about the appearance. The maternal grandmother also was not present.

Outside the courtroom, the mother indicated to the caseworker that the maternal grandmother was "now willing to take care of [Mario] because she [did] not want [Mario] to go to foster care." The mother also gave the caseworker her sister's contact information and stated that her sister might be willing to care for Mario. The Division was ordered to assess the maternal grandmother as a possible placement resource, but the order did not specify whether that possibility related to Mario or the mother's other three children. The mother was granted weekly supervised visitation at St. Joseph's Hospital.

On October 31, 2007, the mother again advised the Division that the maternal grandmother and her sister were both willing to care for Mario. The caseworker explained that Mario needed "constant and special care and supervision," and because of this he could not be placed with someone who did not have the required training. On November 1, the Division caseworker scheduled psychological evaluations by Dr. Ernest Perdomo for the mother, her three older children, A.C., and the father. She advised Dr. Perdomo that the father was not yet complying with services. Dr. Perdomo scheduled the appointments for the adults on January 4, 2008, and for the three oldest children on January 18.

On November 2, 2007, the maternal grandmother advised the Division that she wished to be considered as a possible caregiver for Mario. The Division supervisor explained that Mario had special medical needs and the maternal grandmother would be required to complete special training to appropriately care for his needs. The supervisor offered to provide transportation so the maternal grandmother could attend the training. The record does not disclose whether the grandmother agreed to participate in this training, but none was apparently ever arranged. The caseworker's efforts to contact the mother's sister were not successful although she left messages for her.

The Division found a suitable SHSP home for Mario, and on November 2, 2007, the foster mother and a Division caseworker went to get Mario from the hospital. Although Mario was ready to be released, the hospital staff informed the foster mother that he would still need special medical attention and follow-up appointments for, among other things, a Hepatitis C test and ophthalmology evaluation. The foster parents had three other children in the home, two biological children and one adopted child, who had been an SHSP baby.

On November 5, 2007, the Division confirmed with the mother that she would attend the next team meeting on November 8 and told her that she could include members of her support team.*fn4

The caseworker sent the father a letter advising him of this meeting. The Division transported the mother for visitation with Mario on November 7. During the visit, the mother advised the Division that she had spoken with the father, who "stated that he received the letter from the Division, and that he believed the baby was put up for the adoption." The mother assured the caseworker that she would be present for the team meeting, but she doubted that the father would be. She would try to have her sister attend. After the visit was over, the caseworker went to the father's home to serve him with a court order, but he was not there. That same day, the Division caseworker forwarded the maternal grandmother's contact information to another Division worker at the area office. Thereafter, the record is absent of any documentation respecting efforts by either the maternal grandmother or the Division to work towards the placement of Mario in the maternal grandmother's home.

During a conversation on November 13, 2007, the foster mother informed the Division caseworker that she had taken Mario for the Hepatitis C test and the appointment went well. Mario had gained two pounds since his hospital discharge. That same day, the Division contacted the mother and advised her that the maternal grandmother could begin attending visits with Mario the next day. The maternal grandmother, however, did not attend the visitation on November 14, although the mother did so. A contact sheet was prepared documenting this visit, but the Division caseworker assigned to this family did not prepare any contact sheets for the next five months. There are significant gaps in the contact sheets even thereafter.*fn5

The mother--but not the father--appeared before the court on November 28, 2007, for the return of an order to show cause. The maternal grandmother also did not appear. The judge ordered legal custody of Mario to remain with the Division and physical custody to continue in the SHPS home, but he did not change the previously ordered visitation except to require the Division to supervise the mother's visitation with Mario.

Despite the Division's multiple efforts to engage the father, the first contact he actually initiated was a letter dated December 14, 2007. The father informed the Division that he would be leaving "on tour on January 19, 2008," for an unknown period of time, but that he would contact the Division when he returned. He added: "I'll do whatever [it takes] to get my son back in my life."

The father first appeared before the Family Part judge on January 31, 2008. His son was now almost four months old. He and the mother waived their rights to a fact-finding hearing and stipulated that the mother used heroin on Mario's birthday, which placed the child at risk. The judge ordered the father to comply with psychological and substance-abuse evaluations and to submit to random urine screenings, including one that day. The father and mother were given weekly visitation to be supervised by the Division. Because the next contact sheet is dated April 22, 2008, the documentary evidence does not establish whether the father took advantage of visitation during the three months following this order.

On March 6, 2008, the Division referred the father for a substance-abuse evaluation. The referral form indicated that the father had on separate occasions in the past refused to allow the Division to take urine for drug testing. He was evaluated on March 18 and the Child Protection Substance Abuse Initiative (CPSAI) report diagnosed him on Axis I with opioid dependence in remission; Axes II and III were deferred, Axis IV was a history of legal problems and was unemployed; and Axis V was a General Assessment of Function score of fifty. The CPSAI counselor recommended that the father participate in a more extended assessment process before ruling out current drug use, but he never returned for the assessment, precluding any final diagnostic impression.

The father submitted to a psychological evaluation with Dr. Robert Kanen on March 19, 2008. During the evaluation, he admitted to a prior heroin addiction from 1996 to 1998 that he had supported by selling drugs, but that he had allegedly since overcome on his own. The evaluation also revealed the father had a previous felony conviction in 2000 for aggravated assault and another conviction in 1999 for possession of a controlled dangerous substance.

In terms of employment, the father stated he had been unemployed since September 2008. When that error was called to his attention, he seemed surprised that date had yet to occur, and he could not tell Dr. Kanen the actual date on which the evaluation was occurring. The father later told Dr. Kanen that he had previously worked as a taxi driver, but that he "gave it up" in October 2007 and had been unemployed since then.

The evaluation also noted the father had two other children (ages nineteen and ten at the time), both of whom were being raised by their respective mothers. The father was not in a relationship with either of these two women and lived instead with his mother. In addition, the father admitted to being $3000 in arrears in child support for the ten-year-old child. When asked about plans for Mario, the father revealed he had yet to meet his then five-month-old son. The father also reported his son would live with the mother, and although he explained he had no relationship with the mother, he stated he would have "one hundred percent" involvement with his son.

At the conclusion of the evaluation, Dr. Kanen reported the father to be in the low-average range of intelligence. Dr. Kanen did not diagnose the father as mentally ill, but found he had "severe personality problems that greatly interfere with his capacity to adequately function in daily life." Dr. Kanen further opined that the father "is prone to lose stability under stress, resulting in depressive moodiness, a potential for emotional outbursts, and a preoccupation with pessimistic and self-demeaning thoughts." Moreover, Dr. Kanen described the father as "frequently self-absorbed and [] not likely to be able to care for a child over an extended period of time." He concluded that the father "has severe parenting deficits" and, as a result, the son should not be returned to his care. Dr. Kanen recommended the father "find employment and stable housing[,]... complete parenting classes[,]... complete anger management[,]... [and] be involved in individual psychotherapy."

On April 22, 2008, the Division caseworker visited the mother and the three older children. The mother provided her with the paternal grandmother's telephone number in the event the Division needed to contact her. The next contact sheet was not entered until May 30. In the meantime, after advising the Division several times that the father had not yet participated in a more extended assessment of his substance abuse to rule out any current drug use, the CPSAI counselor discharged him on April 29, 2008.

At the May 8, 2008, hearing, the mother and A.C. appeared, but the father and S.R. did not. The judge continued Mario in the custody of the Division, with physical custody at the SHSP home. Supervised visitation was continued as previously ordered. The judge imposed no specific requirements on the father at this time.

Although one contact sheet was prepared on May 30, 2008, documenting some contact with the foster mother that day, two months would elapse before another contact sheet was prepared regarding visitation dated July 23, 2008. The caseworker asked the mother about the father, and she said that she had not seen him in a long time, although she continued to have contact with the paternal grandmother. The mother and her two daughters went to visit Mario, but the maternal grandmother did not despite the fact that the Division was transporting the family for visitation from the maternal grandmother's home. At this time, the foster mother stated that Mario "was not having any medical problems," and that prior evaluations indicated he did not need early intervention services.

At the August 7, 2008, compliance review, none of the parents appeared. The judge ordered the father to attend the substance-abuse evaluation and continued his supervised visitation. A ...

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