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Division of Youth and Family Services v. H.W

February 2, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-20-09.

Per curiam.



Submitted December 7, 2010

Before Judges Carchman and Graves.

Defendant H.W., the father of S.D.W., appeals from a judgment of the Family Part terminating his parental rights and awarding guardianship to plaintiff New Jersey Division of Youth and Family Services (DYFS or the Division). The narrow issues raised on this appeal are whether DYFS met its burden under prong three of the four prong test articulated in N.J.S.A. 30:4C-15.1(a), and further, whether DYFS failed to pursue Kinship Legal Guardianship (KLG), N.J.S.A. 3B:12A-1(c), as an alternative to termination. We conclude that the judge's finding that DYFS established prong three by clear and convincing evidence was supported by the record. We further conclude that KLG was not a viable alternative. Accordingly, we affirm.

While the issues are narrow, our consideration of this appeal requires an expansive recitation of the relevant facts adduced from the record. S.D.W. was born on July 16, 2002, to A.W.*fn1 and defendant, then 22 years old. When S.D.W. was ten months old, defendant was tried and convicted for aggravated assault on a police officer and possession of a firearm and has remained in prison through much of his daughter's life. Although he was released from prison in 2006, he violated the terms of his parole within six months and was again incarcerated; his scheduled release is in May 2011.

The Division's involvement with this matter started shortly after the birth of S.D.W., when reports showed that S.D.W. was potentially at risk in the care of her parents. Specifically, DYFS suspected that S.D.W.'s parents had been "abusing drugs and neglecting [S.D.W.] . . . and that [S.D.W.] was left home with [defendant] while he was using marijuana." According to DYFS records, a caller informed the Division that the parents were "not providing adequate supervision of [S.D.W.]" and had witnessed the mother leaving S.D.W. "alone in the home while [A.W.] went to use the phone." DYFS eventually made contact with the family in January 2003, at which time A.W. denied the allegations. Meanwhile, defendant also denied that he ever used drugs but conceded that he "used to sell drugs."

After its initial investigation in 2003, DYFS continued to closely monitor S.D.W.'s home and probed additional reports of the family's suspicious conduct. On February 8, 2005, another caller notified DYFS that A.W. had taken a "plastic serving spoon and beat her child . . . ." The caller could not specify whether the child suffered any injuries. By May 2005, the Division learned that S.D.W. "had a broken leg" and that "[A.W.] admitted that she had delayed in getting [S.D.W.] medical care for the injury."

Following this incident, and coupled with news that A.W. was perpetually "drunk" and repeatedly neglected the young girl, DYFS intervened and removed S.D.W. from A.W.'s care. On May 20, DYFS obtained a signed consent from A.W., incorporated in an order, granting the Division permission to temporarily pursue foster care; the agreement was set to expire on June 13. Prior to the expiration of the temporary consent order, several relatives, including a maternal grandmother, S.W., and a maternal great-aunt provided care for S.D.W.

Upon the expiration of the temporary consent order, DYFS filed a complaint for custody of S.D.W. and began an extensive examination into whether either A.W. or defendant were fit to be parents. The judge ordered that S.D.W. be placed into the "immediate custody, care and supervision of [DYFS]" as the judge concluded that the allegations of A.W.'s problems with intoxication were credible.

Thereafter, the judge ordered that S.D.W. be kept in DYFS custody while A.W. submitted to various psychological and substance abuse evaluations. At that time, the judge also granted physical custody of S.D.W. to a paternal aunt, C.W., who cared for S.D.W. until March 2006. On August 18, 2005, the judge ordered A.W. to undergo drug treatment, and later required A.W. to attend Alcoholics Anonymous meetings. Between January and March 2006, the trial court evaluated another relative, the maternal grandmother, and required her to undergo psychological tests to determine if she could be considered as a placement option for S.D.W.

While A.W. received treatment for substance abuse, in early 2006, DYFS conducted follow-up visits with C.W. to ensure S.D.W. was receiving adequate care. Those investigations revealed the possibility that C.W. was "neglect[ing] and abus[ing]" S.D.W. by "leaving [her] with an unapproved caregiver" and that S.D.W. herself "was fearful of . . . physical abuse." DYFS also received reports that S.D.W. had disclosed to caseworkers that someone "would take a belt and hit her in the eye . . . ." In order to determine the truth in these allegations, DYFS visited C.W.'s home but could only confirm that C.W.'s home had "running water" and was otherwise "safe and free [from] . . . initial risks." Nevertheless, DYFS elected to remove S.D.W. from C.W.'s care and place the child into a foster home. C.W. later declined when an inquiry was made as to further care for the child.

While S.D.W. was living with her foster family, the trial court continued to monitor A.W.'s progress to determine if she could eventually care for her daughter.

Ultimately, DYFS filed a guardianship complaint. After ordering various tests, the judge was advised by one of DYFS' consultants, Dr. Genevieve Chaney, that defendant has had a chaotic childhood, including possible parental substance abuse and domestic violence. Chaney also noted that defendant has had several run-ins with law enforcement - from drug sales to aggravated assault on a police officer - dating back to when he was a juvenile. She concluded that defendant required more treatment to ensure he could care for S.D.W. given his instability, his lack of formal work experience and a disconcerting level of parenting knowledge. A bonding evaluation on January 24, 2008, demonstrated that S.D.W. was "scared" of being around her father.

At the same time as defendant's evaluations, the trial judge also requested that DYFS proactively seek out other relatives, including several of defendant's sisters, as part of its statutorily required obligation to explore KLG options in lieu of foster care or adoption. The first sister, M.W., was ruled out immediately because she "was not interested in long- term care . . . ." By February 2008, DYFS had located Anna*fn2 , a sister who had expressed a desire to serve as S.D.W.'s guardian. As the preliminary assessments on Anna seemed promising, on March 28, 2008, the judge granted Anna temporary kinship legal guardianship for 12 months and ordered that the complaint for guardianship be dismissed. The judge also granted weekend visitation to Anna and requested that she attend therapy sessions with S.D.W.

However, DYFS soon began to question Anna's fitness to be guardian following interviews with S.D.W. and psychological evaluations that suggested S.D.W. was not entirely safe or happy under Anna's care. An evaluation conducted at the foster home demonstrated that although S.D.W. was generally a "very irritable, angry, [and] aggressive" child, she "prefers to remain with [the foster mother]" and "dislikes . . . her home." Consequently, the psychologist concluded that as S.D.W. "enjoys living with [the foster mother]" rather than her "Aunt [Anna]," DYFS should "more thoroughly examine[]" the girl's "adoption by her aunt." Later, a telephone conversation between a DYFS employee and S.D.W.'s foster mother unearthed the possibility of suspicious activity in the home, which included S.D.W. witnessing "many men . . . coming and going . . . drinking alcohol" and a cousin forcing S.D.W. ...

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