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State, Division of Youth and Family Services v. K.G.

October 15, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-72-05.

Per curiam.



Submitted: September 13, 2010

Before Judges Grall, C.L. Miniman and LeWinn.

Defendant K.G. (father), the father of E.M.G. (fictitiously Emily) appeals the termination of his parental rights to Emily. The father concedes that the Division of Youth and Family Services (Division) proved the first two prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, but disputes the sufficiency of the proofs respecting the third and fourth elements. Because we are satisfied that the Division has proved those prongs by clear and convincing evidence, we affirm.*fn1

Because we need not address the sufficiency of the proofs under the first and second prongs of the statute, our recitation of the facts has been greatly simplified. Emily was born prematurely at thirty-six weeks of gestation on February 27, 2003. She weighed just five pounds, nine ounces, and her mother admitted using marijuana and cocaine while she was pregnant. The Division found the allegations of neglect substantiated and placed Emily in a foster home with the mother's consent. The father was incarcerated at the time of Emily's birth.

On October 24, 2003, the father was sentenced to a five-year term of imprisonment on one count of first-degree robbery. While he was serving that sentence he was convicted of another count of first-degree robbery and was sentenced on May 13, 2005, to a term of eleven years and six months. Thus, the father has been incarcerated continuously since Emily was born and will remain incarcerated for a significant period of time in the future.*fn2

Emily was discharged from the hospital to a foster home on April 8, 2003. M.C. and J.C., who were ultimately proposed as Emily's adoptive parents, assisted these foster parents in caring for Emily from the time Emily was nine to eleven months old. Although the Division offered multiple services to the mother after this placement, she was unable to remain drug-free or correct the circumstances that resulted in Emily's placement in foster care. She was granted visitation but only exercised it a handful of times. She was referred for a substance-abuse evaluation and treatment, as well as parenting-skills classes, but she was unable to avoid using drugs. While these services were being offered, Emily was moved to the home of M.C. and J.C. The Division filed a complaint seeking custody of Emily. As noted previously, the mother failed to appear in that action, and the judge entered an order terminating her parental rights on October 3, 2005.

Prior to the termination of her parental rights, the mother offered the father's mother, L.G. (paternal grandmother), as a possible relative placement. At that time, Emily had been living for some time with M.C. and J.C., who wanted to adopt her. However, the paternal grandmother contacted the Division when Emily was two and one-half years old, indicating that she wanted to obtain custody of Emily, and she was granted visitation. The father then executed an identified surrender of his parental rights on September 19, 2005, consenting to the plan for his mother to adopt Emily.

Two months later, Emily was placed with her paternal grandmother and the grandmother's boyfriend, S.H., but the placement proved to be a problem. Division caseworkers made frequent visits, announced and unannounced, to the paternal grandmother's home and noted various serious concerns that rendered the home unsuitable for adoption. The grandmother consistently and vehemently denied the extent of these problems, but the Division workers noted them during frequent visits. Emily's therapist noticed similar problems. Throughout this time, M.C. and J.C. were assisting the paternal grandmother in caring for Emily.

By early 2009, the grandmother had difficulty getting Emily to attend school and her therapy sessions; the grandmother was becoming increasingly confrontational with caseworkers. The grandmother concealed Emily's whereabouts from caseworkers at times and failed to disclose an incident where she took Emily to the hospital. Additionally, the paternal grandmother called M.C. to ask for her assistance in caring for Emily. Over time, M.C. and J.C. cared for Emily approximately ninety percent of the time. They cared for her before and after school, and she would sleep at their home several times a week and even consecutive weeks at a time.

The Division assessed M.C.'s and J.C.'s home, which was found to be large, neat, clean, and safe. Emily had her own playroom and her own bedroom, which was beautifully furnished. M.C. expressed concerns about Emily being in the paternal grandmother's custody and reported that, whenever she returned to M.C.'s home after leaving the paternal grandmother, her behavior was difficult. As a result, the Division retained a psychologist to evaluate this situation and determine whether Emily was better off with the paternal grandmother or M.C. and J.C. By this time, Emily had been in the care of the paternal grandmother for four years and was over six years old. However, M.C. and J.C. maintained contact with Emily and often assisted in caring for her.

The psychologist, Barry Katz, Ph.D., performed comprehensive psychological and bonding evaluations while Emily was in the paternal grandmother's care and again after the paternal grandmother alleged that J.C. had abused Emily. Dr. Katz performed similar bonding evaluations of Emily with M.C. and J.C. and psychological evaluations of M.C. and J.C.

Dr. Katz observed pressure on Emily by the paternal grandmother and found indications that the paternal grandmother was coaching, coercing, or intimidating Emily. He found no evidence of the allegation that J.C. had physically abused Emily, instead finding that she had a strong and healthy attachment to J.C. and demonstrated no fear or intimidation in his presence. Emily was calmer and more relaxed while with M.C. and J.C. and more aggressive and intense while with the paternal grandmother. Dr. Katz expressed concern over the paternal grandmother's ongoing conflicts with the Division, M.C., and J.C., and further was concerned with the use of alcohol and Xanax by the paternal grandmother's boyfriend, as well as his aggressive and verbally inappropriate manner in the presence of Emily.

Dr. Katz opined that Emily was dually bonded to the paternal grandmother and M.C. and J.C., but her primary bond was with M.C. and J.C. He concluded that Emily was displaying signs of a conflicted attachment to the paternal grandmother and feelings of loss regarding M.C. He found that separation from M.C. was causing emotional strain on Emily and that she needed to have continued contact with J.C.

Dr. Katz concluded that the significant and on-going concerns for Emily's welfare while in the paternal grandmother's care would support a plan to remove her from the home, and if she was removed, she should be placed with M.C. and J.C. He also recommended that Emily continue in treatment.

On April 15, 2009, the Division denied the paternal grand-mother's application for a Resource Family License because of her continuing failure to ensure her home was in compliance ...

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