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In the Matter of the Guardianship of R.S., Jr., A Minor. v. K.P

February 4, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-75-09.

Per curiam.



Telephonically argued January 18, 2011

Before Judges Lisa and Alvarez.

Defendant, K.P., appeals from the February 4, 2010 order of guardianship terminating her parental rights to her son, R.S., Jr., born on August 26, 2007. The parental rights of the child's father, R.S., were also terminated in that proceeding, but he has not appealed. Defendant argues that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of establishing all four prongs of the best interests of the child test. The Law Guardian supported termination in the trial court and, on appeal, joins the Division in urging us to affirm. We are satisfied from our review of the record that the Division presented sufficient evidence to support Judge John A. Conte's finding that all four prongs were clearly and convincingly established. We therefore affirm.


When R.S., Jr. was born, K.P. was twenty-four years old, and R.S. was seventeen years old. K.P. had two daughters at that time, B.W., born on April 11, 2002 and H.W., born on April 30, 2004, who were in her custody at the time of R.S., Jr.'s birth. The custodial status of B.W. and H.W. changed from time to time during the course of events involved in this case. Since March 2009, they have been in the custody of their biological father, S.W. As we will discuss in more detail, defendant gave birth to a fourth child, A.S., on March 6, 2009. R.S. is the father of A.S., who is now the subject of a guardianship proceeding scheduled for trial in March of this year in Bergen County.

R.S., Jr., has lived with the same foster family since January 10, 2008. He is doing very well in that home, and his foster parents wish to adopt him. His younger sister, A.S., has also been placed in that same foster home.

DYFS first became involved with defendant in June 2007, when her daughters' daycare center reported that the girls frequently displayed poor hygiene and cleanliness, had no spare diapers, and were provided with little food to sustain them throughout the day. The Division's initial investigation of defendant's household found the conditions appropriate. However, DYFS was unable to locate K.P. until June 26, 2007 because the information she had provided the daycare center was invalid. As part of its investigation, DYFS discovered from the Saddle Brook Police Department that there were eleven reports of domestic violence involving defendant and R.S. between October 1, 2006 and June 28, 2007.

DYFS learned from these domestic violence reports about the various incidents underlying them. For example, on October 1, 2006, defendant reported to the police that when she returned to her apartment after attending a party on the prior evening, R.S. was hiding in a closet in her home and threatened her with a knife. She alleged that R.S. raped her at knife point that night as he had also done on September 29. On November 19, 2006, defendant reported to the police that R.S. raped her again on the previous evening. Defendant later reported that this sexual assault caused her pregnancy with R.S., Jr. On another occasion, in December 2006, R.S. kicked in the door to defendant's apartment to gain entry. A similar incident occurred in January 2007, in which R.S. climbed in a bedroom window. He then disconnected the telephone from the wall when defendant was attempting to report the incident to the police. On March 4, 2007, R.S. violated a temporary restraining order that had been issued on February 17, 2007, when he forced his way into defendant's apartment and assaulted her. Defendant was pregnant at the time. R.S. reportedly pulled her hair, banged her head against the wall, and caused a visible injury to her lip. Defendant filed an incident report the next day, and reported that R.S. had sexually assaulted her in the course of the physical assault.

The Division referred defendant and R.S. to Heather Diamond, a licensed clinical social worker, for a risk assessment, which was conducted on July 19 and 25, 2007. Diamond administered several psychological tests and interviewed defendant. She concluded defendant was "an immature, irresponsible, histrionic, dependent and manipulative parent who prioritizes her own needs over the needs of her children." She noted defendant's history of failing to protect herself from R.S. She observed that although defendant separated herself from R.S. many times, she always "capitulates, reconciles, and continues to place herself in danger." She opined that defendant likely perceived "[R.S.]'s obsessive and abusive behavior as loving and that it me[t] her needs for attention and feeling special." Results of the psychological tests revealed that defendant was impulsive, dramatic, and sought instant gratification irrespective of the potential consequences.

Defendant scored poorly on the adult adolescent parenting inventory-2 (AAPI-2), scoring below average in four of the five areas of parenting known to contribute to child abuse and neglect. In the category of "expectations," defendant's low score indicated a misunderstanding of her children's needs and her expectation that the children were more developmentally capable than they actually were. In the area of "empathy," defendant demonstrated a lack of nurturing skills because she did not believe her children needed much by way of parental guidance and support. In the "family roles" category, defendant demonstrated characteristics indicating a parent-child relationship in which the child, in part, becomes the parent's caretaker, responsible for making the parent happy. In this scenario, the child is viewed as an object for the adult's gratification, rather than as an individual with his or her own needs. In "power and independence," defendant's low score indicated that she viewed her children's natural tendency to strive for competence and independence as threatening. Rather than facilitating her children's self-esteem and confidence, defendant tended to deliberately inhibit their healthy emotional development.

Defendant's score on the child abuse potential inventory (CAPI) did not indicate that she was prone to physical child abuse. However, Diamond opined that K.P.'s elevated scores in the "lie" and "faking good" indices suggested that the results of the CAPI may have been inaccurate.

Diamond's assessment of R.S. also showed poor results. Because R.S. is not involved in this appeal, we need not describe the results in detail. It is sufficient to note that he, like defendant, did not exhibit appropriate parenting capabilities. Diamond recommended that defendant and R.S. attend alternatives to domestic violence (ADV) therapy, parenting classes, and individual psychotherapy.

In August 2007, DYFS learned that defendant gave birth to R.S., Jr. DYFS also learned that defendant had recently moved to the same town in which R.S. lived. On September 5, 2007, DYFS initiated a Title Nine proceeding. Defendant retained physical custody of her three children, under the supervision of DYFS. The court ordered defendant and R.S. to attend ADV, parenting classes, and psychotherapy. R.S. was required to undergo a substance abuse evaluation, and defendant was ordered to cooperate with homemaker services and to participate in Families First. Subsequently, the Division followed up and referred defendant and R.S. to Epic Parenting Group.

Over the next two months, R.S, did not perform well in the substance abuse assessment and treatment programs to which DYFS referred him. He repeatedly tested positive for illegal substances and was noncompliant with treatment services. Because of his noncompliance, he was discharged from the treatment center.

R.S. also continued in his violent behavior. An incident occurred in Lodi on September 26, 2007 that resulted in police involvement. Defendant was parked in a car at a gas station, in which S.W., the father of her older children, was sitting in the front seat, and defendant's three children were in the back seat. R.S. saw this. He approached the vehicle, reached in and began hitting S.W. Defendant began to drive away. R.S. followed and was kicking at the vehicle. Rather than drive out of the area to assure the safety of the children, defendant pulled over and got out of the vehicle to assess any possible damage. R.S. again reached into the car, this time stealing defendant's cell phone. Defendant refused to seek a restraining order against R.S.

On October 9, 2007, R.S.'s mother called DYFS and reported that her son and defendant had spent the prior five days together in a motel smoking marijuana. She said defendant had left her three children with her twin sister, who also had a history with DYFS because of questionable parenting skills. A Division caseworker went to defendant's home. Defendant was not there. S.W. was there and said he was caring for the children, but he had no way of contacting defendant. S.W. said he had been with the children all weekend. He said defendant was away each day, but returned home to sleep at night.

The caseworker spoke to B.W., who was then five years old. B.W. said she had not seen R.S. since the gas station incident. She said she was afraid of R.S., who used to grab her hand really hard. She also acknowledged that her mother had left the home the prior night and was often not home.

On October 9, 2007, defendant told the caseworker she had been at a girlfriend's apartment over the weekend, and the girlfriend was urging defendant to move in with her. Defendant said she had been traveling back and forth between apartments to check on the children. She admitted she had spent that Saturday night with R.S. at a motel. However, she denied using drugs or alcohol. Defendant also admitted she had just visited R.S. that day, for the purpose of collecting child support from him.

The next day, October 10, 2007, the Division conducted an intake referral, interviewing defendant, R.S. and S.W., in an effort to determine who was caring for the children over the prior weekend. Defendant contradicted her earlier statements. She said she had been at a friend's house that Sunday for a barbeque and stayed the night because the friend lived far from her home. She denied staying with R.S. in a motel on Saturday, and claimed she charged the room on her credit card to "help him out." R.S.'s version of the events did not corroborate defendant's. He claimed he had not seen defendant for the last week, contending the last time he had seen her was at the DYFS offices when he was visiting R.S., Jr. R.S. also denied being present or causing any damage in the gas station incident. R.S. stated that he was not in a relationship with defendant at that time.

Because of these events and the conflicting information provided by the parties, the Division conducted an emergency removal of all three children on October 10, 2007. At a hearing on October 11, 2007, the court awarded custody to DYFS, finding that removal was necessary due to the imminent danger to the children's well-being. The court directed defendant and R.S. to attend ADV, continue individual counseling, complete regular drug screenings, and participate in family preservation services as well as the Care Plus NJ parent child supervised visitation program. The children were placed in foster care.

On October 23, 2007, the court granted defendant and R.S. weekly supervised visitation rights, but restricted R.S. from visiting defendant's home. Defendant and R.S. completed the parents empowerment academy training program in December 2007. Although they completed the program, this did not indicate either parent's "readiness to parent."

At a court hearing on December 20, 2007, defendant, represented by counsel, admitted that her children were removed from her custody on October 10, 2007 because her inadequate care placed them at risk of harm. After reviewing the Division's December 13, 2007 report, the court ordered that physical custody remain with DYFS. The court also ordered that defendant and R.S. attend ADV and individual psychotherapy. Supervised visitation was continued, as was the restriction against R.S. visiting defendant's home. Finally, the court ordered the Division to arrange an interstate evaluation of defendant's mother as a possible caretaker. Her mother lived in Georgia with her sixteen-year-old daughter. After conducting the evaluation, the Division found that defendant's mother would not be a suitable caretaker and issued a rule-out letter. There is no indication in the record that defendant's mother appealed that determination.

On March 7, 2008, the court granted defendant legal and physical custody of her two older daughters, B.W. and H.W., based upon her completion of twelve of the twenty-six required ADV sessions and her regular attendance at individual therapy. The judge ordered that DYFS retain supervision over B.W. and H.W., and that R.S., Jr. was to remain in the Division's legal and physical custody. The plan was to allow defendant to develop a routine with the two older children and then regain custody of R.S., Jr. after about a month, if all went well. DYFS sent a referral for ...

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