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New Jersey Division of Youth v. M.S

January 14, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-76-08.

Per curiam.




Argued December 6, 2010 - Decided Before Judges Lisa, Sabatino and Alvarez.

M.S. appeals the Family Part's termination of his parental rights to three children, K.S. born February 8, 1999, O.S. born June 24, 2001, and A.S. born November 24, 2003. For the reasons set forth below, we affirm.

We first reviewed the matter in 2008, as to both M.S. and the children's mother, M.M. We affirmed the termination of M.M.'s parental rights; however, the termination as to M.S. was reversed and the case remanded because we found that the State failed to prove by clear and convincing evidence the second, third, and fourth prongs of the statutory test found in N.J.S.A. 30:4C-15.1(a). N.J. Div. of Youth & Family Servs. v. M.S., No. A-5291-07 (App. Div. Apr. 23, 2009) (slip op. at 40). On remand, the trial court conducted additional proceedings in October 2009 and issued a written decision terminating M.S.'s rights on October 20, 2009.

To briefly explain the factual circumstances leading to this appeal, Florida's Department of Children and Families (DCF) became involved with this family in 2005 after receiving reports of domestic violence. These included an incident in which M.S., while wielding a crowbar, choked M.M., attempted to assault her grandfather, and then smashed her grandfather's car windows. M.S.'s criminal record commences in 1992, and includes two grand theft convictions, possession and delivery of cocaine, battery, multiple burglaries, trespass, obstructive arrests, petty theft, possession of an open container, and driving with a cancelled license. After being convicted of aggravated battery with a deadly weapon in 2006, M.S. was incarcerated. During this time DCF removed the children from their mother's custody.

In March 2006, the children and M.M. moved to New Jersey. The following month, the Division of Youth and Family Services (the Division) removed the children from M.M.'s care when she stabbed her former husband in their presence. The two-bedroom apartment in which M.M. and the children had been living at the time had five other occupants. The children slept on a mattress in the dining room.

When the Division filed an order to show cause seeking protective custody on April 20, 2006, it was unaware of M.S.'s whereabouts. He was finally located in Florida, and a week prior to the return date of the order to show cause, was noticed of the Division's application. The letter indicated that even though M.S. "was currently between residences," it was "very important" that he remain in contact with the Division. On May 24, 2006, M.S. confirmed receipt of the pleadings and advised the Division that he had been in jail when the children were removed. He had not talked to his children for nine months and asked for a conference call to be arranged; it was not until fourteen months later before the Division responded.

In August 2006, M.M. moved back to Florida. The children were returned to her care in February 2007. Thereafter, M.S. saw the children on weekends until July 2007, when domestic violence involving M.M.'s new boyfriend, as well as the level of care M.M. was providing the children, resulted in DCF requesting that the children be returned to New Jersey. By order dated July 18, 2007, the court ordered the Division to evaluate M.S. and provide him with services. A home study was requested in Florida.

M.S. has been evaluated on numerous occasions. It is undisputed that his full-scale I.Q. is between 62 and 66. He has been diagnosed as suffering from schizophrenia, which has resulted in significant episodes of disturbances over his life. M.S. is currently under the care of a psychiatrist and is intermittently compliant with a regimen of medication. He works in manufacturing, and had been steadily employed for four years at the time of the remand. He has lived with his now-wife, T.S., and her teenage son, for at least that same period of time. On his own and at his own expense, he completed a parenting skills class and obtained mental health treatment.

Prior to the first trial, Robert James Miller, a psychologist, evaluated M.S. at the Division's request. Dr. Miller found that M.S. would not be a suitable caretaker for the children because he demonstrated a lack of insight, externalized blame, and has a long history of psychological disturbances. In Dr. Miller's opinion, these disturbances would "likely compromise his ability to provide parental care and emotional nurturance for his children."

In February 2008, Hany H. Botros, M.S.'s treating psychiatrist in Florida, diagnosed him as suffering from schizoaffective disorder, but reported that M.S. had not experienced any psychotic, depressive, or manic symptoms since his separation from M.M. After the first trial, in June 2008, however, M.S. complained of a "short temper and poor frustration tolerance, feeling edgy, irritable with mood swings, racing thoughts and difficulty sleeping at night." He told Dr. Botros that he had "difficulty dealing with people at work and feels that people are trying to harm him." At M.S.'s request, Dr. Botros prescribed psychotropic medication, specifically, Risperdal and Depakote. Dr. Botros's records through June 2009 indicated that M.S. was compliant with his medication and was doing well.

Frank Dyer, a psychologist retained by the Division, testified at both trials. He conducted psychological testing of M.S., T.S., the children, and bonding evaluations. Dr. Dyer did not obtain M.S.'s psychiatric records until after the first trial. As he testified in the second trial, however, his review of those records merely confirmed his earlier opinion regarding the difficulty M.S. would face if the Division returned the children to his care. Dr. Dyer opined at both trials that M.S. could not provide a safe and stable home for the children given his criminal history, acts of domestic violence against the children's mother, and significant psychiatric disorder. In formulating his opinion he relied, among other things, upon two of M.S.'s episodes: in November 2004, when M.S. became acutely psychotic and required hospitalization; and in 2002, when M.S. asked a police officer to shoot him to stop his thoughts. Dr. Dyer noted that although T.S. was a very significant, "quasi-parental figure" to M.S., that she said that if he began to "act[] crazy," he would be "gone." In Dr. Dyer's opinion, separation from T.S. would be "catastrophic" to M.S.'s ability to function.

These three children, in Dr. Dyer's opinion, would be "extraordinarily taxing even to the most mature, psychologically stable, and committed caretaker." No services exist that would enable M.S. to successfully parent these very difficult children.

Dr. Dyer conducted bonding evaluations both prior to the first trial as well as after the remand. He found that overall M.S. and T.S. had "good," "appropriate," and ...

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