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New Jersey Division of Youth and Family Services v. B.K

December 23, 2010


On appeal from Superior Court of New Jersey, Chancery Division, Family Part Essex County, No. FG-07-60-09.

Per curiam.



Submitted November 3, 2010

Before Judges Wefing, Payne and Baxter.

B.K. appeals from a trial court judgment terminating her parental rights to her daughter A.K., now four years of age. After reviewing the record presented on appeal, we affirm.

B.K. has five other children; none are in her care. Her parental rights to two of her children have been terminated. She pled guilty to aggravated assault and endangering the welfare of a child after having shaken one of these children when he was only months old because he would not stop crying. She shares legal custody of three of her children with her mother, but the children reside with their grandmother, not with B.K. They range in age from eighteen to sixteen years old; the oldest has two young children of her own.

B.K. has a long-standing problem with substance abuse. At least three of her older children tested positive for narcotics at birth. When A.K. was born in September 2006, she tested positive for cocaine and methadone and experienced withdrawal symptoms. She was also tested positive for exposure to Hepatitis C, which she had contracted from B.K. A.K. was classified as "medically fragile" and remained in the hospital for more than a month after her birth. The New Jersey Division of Youth and Family Services ("DYFS") was granted custody of A.K. when she was discharged from the hospital.

DYFS's initial goal with respect to A.K. was to place her with a family member while B.K. obtained treatment for her drug problems. To this end, it arranged for B.K. to receive a drug evaluation, drug treatment, a psychological evaluation and supervised bi-weekly visits with A.K. She missed a great many of her visitations, however. The case worker who testified at trial had been in charge of the matter for more than a year; she said that in that time B.K. visited with A.K. approximately ten times. B.K. also regularly failed to attend appointments that had been scheduled for drug evaluation. DYFS assessed her level of cooperation as "poor."

In August 2007, when A.K. was nearly one year old, B.K. had a psychological evaluation performed by Albert R. Griffith, Ed.D. She told Dr. Griffith that she had remained drug free for six months, but she had made no plans for A.K.'s care. Approximately six weeks later, B.K. tested positive for cocaine, heroin and benzodiazepines.

Three months after B.K.'s psychological evaluation, DYFS arranged for a psychological evaluation of her mother, to evaluate whether she was a suitable care giver for the infant A.K. This evaluation was performed by Mark Singer, Ed.D. The results of this evaluation showed that she was illiterate, had an IQ substantially below average, was emotionally immature and had "difficulty dealing with ambiguity." Dr. Singer testified that B.K.'s mother tended to "see the world in black and white . . . . it's all good or all bad." In Dr. Singer's opinion, while she could care for older children, "she would have significant difficulty caring independently for a young child with special needs."

In January 2008, DYFS notified B.K.'s mother that it had eliminated her as a potential caregiver for A.K. It cited the results of the recent psychological evaluation, its concern that she would not restrict B.K. from having access to A.K. and the fact that her age (65 at the time), combined with her responsibilities for the older children, would make caring for a child such as A.K. even more difficult.

B.K. continued to miss appointments for a drug abuse evaluation. In July 2008, she attended a court hearing and was tested for narcotics. The results were positive for cocaine and methamphetamine. As a result, the trial court entered an order exempting DYFS from making further efforts to reunite B.K. with her daughter, A.K., who by then was nearly two years old. In September 2008, DYFS filed a complaint seeking to terminate B.K.'s parental rights with respect to A.K.

Dr. Griffith performed another psychological evaluation of B.K. in December 2008. At that point she told him she had been drug-free for two months. Dr. Griffith concluded that in light of her minimal progress in overcoming her substance abuse and her repeated relapses, the prognosis for reunification between B.K. and A.K. was poor. Dr. Griffith also conducted a bonding evaluation between B.K. and A.K. He reported that A.K. saw B.K. as a familiar face but did not look to her for nurturance, security or protection. He noted that A.K. easily separated from her in contrast to the anxiety she initially displayed when her foster mother left the room. In Dr. Griffith's opinion, A.K. would not suffer irreparable harm if B.K.'s parental rights were terminated.

In January 2009, DYFS found it necessary to transfer A.K. to another foster family because the family with whom she had been residing had inadequate housing. A.K. has remained with this foster family, and they are committed to her adoption. This is her third placement. In April 2009, Dr. Griffith conducted a bonding evaluation between A.K. and this foster family. He found her to be "emotionally attached" to them and that her foster parents "appear[ed] to provide a loving and supportive home" for her. He noted that A.K. was "less resilient" than other children in light of her developmental delays and was at risk of being damaged by an attempted reunification that ultimately failed.

Also in April 2009, Dr. Singer conducted another evaluation of B.K.'s mother to determine again whether she was a viable candidate to care for A.K. He again noted her limitations as well as the fact that she admitted to him that she permitted B.K. to have unsupervised visits with the older children despite her knowledge of B.K.'s drug abuse.

A number of other evaluations were performed prior to the trial of this matter. On May 16, 2009, Gerard A. Figurelli, Ph.D., examined B.K.'s mother at the request of B.K.'s attorney. His report noted that she was then 67 years old and was caring for B.K.'s three children as well as the two young great grandchildren in her three-bedroom apartment. He noted that despite her limitations, she was able to function independently. Dr. Figurelli concluded that B.K.'s mother "possesses the capacity to act adequately in a parenting role," but should "participate in parenting skills or education" to help her parent a child such as A.K.

In July 2009, Dr. Figurelli also performed a bonding evaluation of A.K. with her grandmother, who brought her great-grandchild with her, and he observed that A.K. ran after the two of them when they left the room. He concluded that A.K. had a "significant positive emotional attachment" with her grandmother and that there is a "basis for the development of a full reciprocally bonded relationship" between them but that it had not yet been developed.

A few days later, Dr. Figurelli assessed the bond between A.K. and her foster parents. He noted that A.K. consistently referred to her foster mother as "Mommy," was much more verbal with them than she was with her grandmother, and that she appeared to be thriving in their care. Dr. Figurelli concluded that A.K. was developing a "positive emotional attachment" to her foster parents and that the basis for a full reciprocally bonded relationship was there but had not yet been developed since A.K. had only been with them for seven months. In his opinion, A.K. could "be removed from the care of her foster parents and placed with [her grandmother] without experiencing harm that is severe or enduring in nature." He stated further that, if ties to her biological family were severed, A.K. would experience severe "psychological harm" later on in life.

In September 2009, Dr. Singer conducted a bonding evaluation of A.K. with her grandmother. He observed that three-year-old A.K. did not speak or babble at all in her grandmother's presence and that being comfortable enough to speak indicates attachment. He also noted that, when he asked the grandmother to leave the room to test how A.K. would detach from her, she repeatedly called A.K. to come to her. When A.K. did not come and, instead, moved closer to Dr. Singer, the grandmother said: "I'm going to leave you. You didn't come to me." Thereafter, the grandmother appeared to feel rejected by A.K. and did not engage or speak to the child for the rest of the session. Thus, Dr. Singer concluded that a secure, mutual attachment had not been developed between A.K. and her grandmother.

Later, Dr. Griffith conducted a third updated psychological evaluation of B.K. He noted that B.K. remained "immature, impulsive and relatively self-centered." B.K. appeared unaware of A.K.'s speech delay. However, Dr. Griffith did note that, according to B.K., she had made some progress in addressing her drug abuse by attending Narcotics Anonymous and outpatient therapy. Although B.K. made a "grandiose statement of desire to get custody of all her children," he noted this was not supported by her efforts; she had not made any realistic plan to care for A.K. other than leaving her with B.K.'s mother, who was already caring for five children. Accordingly, his conclusion about B.K.'s inability to parent A.K. remained the same.

Dr. Griffith also performed a second bonding evaluation of B.K. with A.K. He noted B.K.'s lack of recognition of A.K.'s speech impairment and the fact that A.K. was too uncomfortable to speak around B.K., as she did with her foster mother. Dr. Griffith concluded:

She has some attachment to [B.K.]. It is not a significant bonding. She separates easily, is a passive participant with [B.K.] and does not appear to look to her for protection. Given any change a child with limited resiliency must be seen as being placed at risk. This mother has still not demonstrated stability after 2 years. Her case for reunification appears to rest more on hope than reality. The risk of harm from adoption by the [foster parents] appears less than the risk of harm from a failed placement with [B.K.].

That same day, Dr. Griffith also assessed the bond between A.K. and her foster mother. He noted that A.K. repeatedly addressed her as "Mommy" and that the foster mother had been diligent in arranging for A.K. to receive the speech therapy that she required. Dr. Griffith determined that A.K. was developing a growing attachment to her foster mother and was building some security in their home. He concluded:

[A.K.] has already been transferred from one home. If she has to go to a home and that placement fails, her loss will then become very substantial. [A.K.] has made progress in her present home. [B.K.] is still not ready for custody and there is reason to doubt that she will become ready in the immediate future. Given that circumstance, it would be better to terminate custody and let the child be adopted by the [foster parents]. It is unlikely that [A.K.] will suffer any loss if she no longer sees [B.K.] since she has played such a tangential role in her life.

Drs. Griffith, Singer and Figurelli all testified at trial, setting forth the conclusions they had each reached in their earlier reports, and the reasons they had for reaching those conclusions. Dr. Griffith, who had conducted bonding evaluations of A.K. with B.K. and with her foster parents, testified that in his opinion A.K. would suffer irreparable harm if she were separated from her ...

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