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

December 14, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-133-08.

Per curiam.



Submitted November 30, 2010

Before Judges Baxter and Koblitz.

This is an appeal by a mother and two fathers from a September 15, 2009 Family Part order that terminated their parental rights to their three daughters, who ranged in age from five to nine. L.C. is the mother of all three: J.L.S., born November 26, 1999; S.M.A., born October 26, 2002; and L.Y.H., born July 5, 2004. I.S. is the father of J.L.S. and S.M.A.*fn2

R.H. is the father of L.Y.H. We reject the mother's contention that: the Division of Youth and Family Services (DYFS or Division) failed to satisfy by clear and convincing evidence the statutory standard for the termination of her parental rights; the judge gave undue weight to the psychological evaluations offered by DYFS; and the judge's findings of fact were insufficient to support the legal conclusions reached. As to I.S. and R.H., we reject their arguments that the judge wrongly terminated their respective parental rights solely because of their protracted periods of incarceration and that the order was against the weight of the evidence admitted at trial. We affirm the order under review.


A. L.C.

After two unsubstantiated referrals in January 2005 and September 2006, DYFS received two referrals on October 10, 2006 that led to the removal of all three children from their mother, L.C. The first referral on October 10, 2006 came from Newark police, who reported to DYFS that the girls were living with their mother, L.C., in a one-room apartment with a front door that was off its hinges and would not lock. Newark police also reported that all three children were sleeping on a single mattress on a floor littered with cigarette butts. The second referral came from a neighbor, who reported that the two older girls, then ages six and four, were playing outside unsupervised while their mother was inside having a sexual encounter with a fourteen-year-old girl. The neighbor also claimed that L.C. sold crack cocaine nearly every day, and that she often grabbed the girls by the hair and punched them in the face.

DYFS caseworkers sent to the apartment found that all three girls had head lice and larvae for which L.C. had not sought medical attention. DYFS also established that L.C. had withdrawn J.S. from school but had failed to enroll her in a new one. At the conclusion of the October 10, 2006 inspection of L.C.'s apartment, the Division instructed her to immediately find other accommodations. Although L.C. placed her daughters with relatives and a family friend, all three caregivers were found unsuitable, either due to a prior history with DYFS, job responsibilities or inadequate living arrangements.

Based upon the deplorable living conditions, the girls' head lice and the six-year-old not being in school, on October 31, 2006, DYFS instituted an emergency removal pursuant to court order, placing the three children together in a foster home. As we shall discuss in greater detail later in this opinion, neither of the two fathers was living with L.C. at the time DYFS removed the three children. I.S. had been incarcerated since March 2005 and R.H. had been incarcerated since June 2006. On December 28, 2006, the children were placed together with their current foster family, where they have remained ever since.

At the time DYFS removed the children from L.C.'s custody, the agency required L.C. to submit to a drug test. She tested positive for marijuana and methamphetamines. In fact, L.C.

later tested positive for various illicit substances on October 31, 2006, and on January 4, February 12, March 26, May 22, July 20, September 27, October 1, October 9, October 22, October 30, November 5 and November 6, 2007.

In the nearly three years that elapsed from the time DYFS removed the children in October 2006 and the time the trial was completed in September 2009, DYFS provided a broad array of services to L.C., including referrals for psychological counseling and substance abuse treatment. In particular, in September 2007, after a substance abuse evaluation by a certified substance abuse evaluator at Catholic Charities, the evaluator recommended L.C. attend The Bridge partial hospitalization drug treatment program, diagnosing L.C. with both "PCP abuse" and "cannabis abuse."

At the initial session at The Bridge on September 27, 2007, L.C. tested positive for PCP. On October 10, 2007, The Bridge reported to DYFS that L.C. had attended all of her group and individual counseling sessions for October, but had three positive urine screens for PCP. By November 2007, L.C.'s attendance rate plummeted. The Bridge reported that L.C. had missed seven out of seventeen sessions, arrived late to two of them, and attended only three out of five individual sessions.

Of the eight urine screens, five were positive for PCP and two were positive for methadone.

The Bridge terminated L.C. from its program, notifying DYFS that L.C. did not acknowledge her substance abuse problem, and commenting that L.C. needed a higher level of care than The Bridge could provide. The Bridge recommended that L.C. contact Bergen Regional, which was expecting her call; however, L.C. never attended Bergen Regional, and told her caseworker that she would enroll in the drug treatment program at CURA, but never did. In early 2008, L.C. enrolled in The Bridge's GED program, but never completed it. She did, however, complete a parenting skills class in September 2008.

DYFS also referred L.C. to Johnson & Associates, a mental health counseling group, where she was scheduled to start individual therapy in January 2007, but did not, due to a brief incarceration. In March, L.C. told her DYFS caseworker that she did not want to attend counseling because she could be "doing other stuff," but she ultimately agreed to attend. In April, she signed a contract obligating her to attend sixteen consecutive individual counseling sessions, sixteen consecutive substance abuse classes, and parenting skills classes. In June 2007, Johnson & Associates reported that L.C.'s progress was unsatisfactory because she had missed numerous sessions and tested positive for PCP in May. In July, her progress was still unsatisfactory due to positive urine screens in June and July, despite attending sessions more regularly. In October 2007, Johnson & Associates discharged L.C. from the program due to her non-compliance.

In light of L.C.'s lack of cooperation with drug treatment and the lack of any reasonable prospect that L.C. would become cooperative in the near future, at the October 11, 2007 permanency hearing, DYFS sought court approval for abandoning the goal of reunification. The judge approved DYFS's goal of termination of parental rights followed by adoption, and on December 6, 2007, the Division filed a complaint for guardianship and for termination of the parental rights of all three parents.

As we have noted, the Division also provided L.C. with mental health evaluations and attempted to provide her with mental health treatment. L.C. underwent a psychiatric evaluation with Ronald Crampton on October 25, 2007. She told Crampton that she had been abused by both I.S. and R.H., that she used marijuana and PCP, and that she had been arrested on shoplifting and drug charges, for which she received probation. Crampton diagnosed L.C. with depressive disorder (not otherwise specified) and phencyclidine dependence, for which he recommended "comprehensive psychiatric assessment and treatment" and substance abuse treatment. At the conclusion of his report, Crampton opined that L.C. was not presently capable of providing the care and nurturance that her children required and recommended that DYFS not return the children to her custody at that time.

After receiving Dr. Crampton's recommendations, the Division referred L.C. to the University of Medicine and Dentistry of New Jersey (UMDNJ) partial hospitalization program, and, although the judge had ordered her to comply with all of Dr. Crampton's recommendations, L.C. failed to keep her appointments at UMDNJ.

Even though L.C. had essentially sabotaged her mental health treatment at Johnson & Associates and at UMDNJ, DYFS persisted in its effort to secure individual counseling for her, referring L.C. to individual counseling sessions with Nilda Pyronneau. Between August 28, 2008 and January 30, 2009, L.C. skipped eight of her weekly appointments with Pyronneau. Because L.C. missed two consecutive sessions, on January 23 and January 30, 2009, Pyronneau discharged L.C. due to her non-compliance. Pyronneau also reported to the Division that she had been unable to establish any contact with L.C. after L.C. failed to appear for the January 23 and January 30, 2009 appointments.

The Division identified a third risk factor in L.C.'s parental functioning. In February 2007, when S.M.A. was four years old, she told her foster mother that while she was living with L.C., L.C. had sexually abused her. Upon learning of S.M.A.'s report of sexual abuse, the Division caseworker arranged an evaluation of S.M.A. at the Metropolitan Regional Child Abuse Diagnostic and Treatment Center (MRCADTC). The MRCADTC evaluator believed that S.M.A.'s allegations were "probable," given the consistency of her statements and her "sensory knowledge" that the insertion of her mother's finger into her vagina and anus had hurt; however, both police and the evaluator determined that it was impossible to definitively establish abuse in light of S.M.A.'s young age.

In light of S.M.A.'s allegations, the Division required

L.C. to submit to a psycho-sexual evaluation with Heather Diamond, a licensed clinical social worker (LCSW) at the Center for Evaluation and Counseling. L.C. denied sexually abusing her daughter but did admit to having engaged in a sexual relationship with a fourteen-year-old girl. Despite the fact that the girl's young age rendered L.C.'s sexual involvement with her a crime, L.C. asserted there was nothing wrong with the relationship, insisting the girl "had a lot of knowledge and a lot of goals herself so we didn't consider it a problem." L.C. also contended that because the relationship lasted only a month, "it's not like there were strings attached, and no one was going to get hurt." L.C. also maintained that her children knew nothing of the relationship because "[w]e didn't do anything in front of them." Contradicting her claim that her children knew nothing of her sexual relationship with the fourteen-year-old, L.C. admitted that her oldest child, J.L.S., asked a lot of questions about it, to which L.C. simply responded "no. She's just my best friend."

Diamond found that L.C. was "an immature, irresponsible and narcissistic parent" who "consistently prioritizes her own needs over the needs of her children." She described L.C. as apathetic and "lack[ing] insight into her problematic behaviors." According to the evaluator, L.S. had "many antisocial characteristics," including her disregard for the law or authority, deceitfulness, impulsivity, irritability, disregard for the welfare of others and lack of remorse. Diamond concluded that L.C. was at high risk for committing child abuse and neglect, and recommended that she be supervised when in the presence of her children.

At trial, DYFS presented the testimony of psychologist Andrew Brown, who evaluated L.C. in February 2007 and again in December 2008. One of Dr. Brown's principal findings was L.C.'s lack of candor concerning the extent of her drug habit, including her tendency to minimize its impact on her life and on her ability to rear her three daughters. In particular, during the 2008 evaluation, L.C. maintained that the only drug she had ever used was marijuana, yet in the 2007 evaluation she admitted to Dr. Brown that she had used marijuana, as well as PCP and Ecstasy.

Dr. Brown also opined that L.C. lacked the ability to accomplish goals she had set for herself, pointing to her February 2007 promises to obtain her GED and complete a substance abuse program, neither of which had been achieved by the time of the December 2008 evaluation. Additionally, because DYFS had offered L.C. numerous opportunities to obtain treatment, L.C.'s failure to address her mental health and substance abuse problems over a period of years demonstrated a lack of insight and a pattern of irresponsibility. Dr. Brown also opined that L.C.'s offhand dismissal of her sexual relationship with a fourteen-year-old as "not a problem" reflected extremely poor insight and judgment. Ultimately, Dr. Brown opined ...

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