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New Jersey Division of Youth and Family Services v. B.A.W


April 4, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-19-10.

Per curiam.



Submitted March 14, 2011

Before Judges Rodriguez, Miniman and LeWinn.

The Division of Youth and Family Services (DYFS) brought this action to terminate defendant B.A.W.'s parental rights to her child, J.T.W., a boy born in October 2007. Following a trial, Judge Mary K. White entered judgment in favor of DYFS. We affirm.

J.T.W. is the tenth child of B.A.W. and T.W. T.W. does not live with B.A.W., and has not provided support for any of his children with her.*fn1 DYFS's first contact with B.A.W. was on January 8, 2003, after she received a municipal court fine for her children's truancy. DYFS determined that continued supervision was merited.

A month later, B.A.W. gave birth to Ja. W., who tested positive for opiates. DYFS became involved with B.A.W. again on March 30, 2004, when she gave birth to Jo. W, who was born drug-exposed, deaf, blind and premature. He tested positive for cocaine, amphetamines and methamphetamines. Jo. W. died from complications from drug exposure before his first birthday.

In May of 2004, Social Services moved B.A.W. and the children to transitional housing. After supervisors heard "screaming coming from the house at night," and saw B.A.W's young children "running out in the street in front of cars," Social Services evicted the family.

With DYFS's help, B.A.W. moved to a Volunteers of America Shelter. There, B.A.W. continued to leave her children unsupervised, and faced eviction again by September of 2004. DYFS intervened and sought guardianship of the six children in her care. Judge Cynthia Covie-Leese granted DYFS's petition on September 9, 2004 citing the "ongoing risk to the life, safety or health of the children due to unstable housing, improper supervision . . . , lack of medical care . . . , and [B.A.W.'s] failure to enroll the children in school."

After the children were removed, DYFS provided B.A.W. with outpatient drug rehabilitation. Nevertheless, her cocaine and opiate use continued through 2005 and 2006.

DYFS also retained Dr. James Loving, a psychologist, to evaluate B.A.W. Although B.A.W. had no "major mental health problems [or] major intellectual limitations," she abused narcotics, suffered from mild depression and exercised poor judgment. She also had Dependent Personality Disorder, causing her to rely on others to parent her children. Consequently, she lacked "basic parenting skills." B.A.W. also suffered from Adjustment Disorder which caused her to become overwhelmed, "withdrawn and not active" when she was depressed.

According to Loving, B.A.W.'s substance abuse also had "obvious implications for her ability to parent safely and effectively in a whole range of ways . . . contributing to a lethargic, not active, not effective, not consistent way of disciplining her kids, meeting her kids' needs and maintaining independence and stability for them." Loving recommended that DYFS "seriously consider other permanency outcomes for her kids," if B.A.W. was unable to adjust.

On January 31, 2006, Judge Marvin E. Schlosser ordered B.A.W.'s six oldest children to be placed with her cousin and sister as kinship legal guardians. Later that year, the judge terminated B.A.W.'s parental rights to her two youngest children so that each could be adopted.

DYFS received another referral on June 14, 2007. B.A.W. was "pregnant, had received no prenatal care and was going to be evicted." She gave birth to her tenth child, J.T.W., on October 7, 2007. He tested positive for Percocet at birth and was "medically fragile." Although B.A.W. possessed a prescription for Percocet, her history of narcotics abuse and failure to attend drug treatment, parenting classes or prenatal care appointments prompted DYFS to seek placement of J.T.W. with a relative.

DYFS was unable to identify an alternative placement.

B.A.W.'s biological mother lived with B.A.W.; missed home evaluations; and had a criminal history. Because no other relatives were available, DYFS placed J.T.W. with a "Specialized Home Service Provider," where he remained for a year.

Meanwhile, B.A.W. entered an intensive inpatient treatment. She was "unmotivated" and required forty weeks to complete the twelve-week program. She tested positive for opiates days after completing the program. Two months later, she was discharged from another program for noncompliance.

DYFS placed J.T.W. in a foster home on February 3, 2009, where he has resided since. Although he was initially a high risk infant, J.T.W. has made "great developmental progress," and bonded with his foster parents' five-year-old child. The foster parents wish to adopt J.T.W.

Between April and September 22, 2009, a program called Robin's Nest supervised visits between B.A.W. and J.T.W. The program terminated the supervised visitations after B.A.W. missed six of nineteen scheduled visits. Although DYFS arranged for another visitation program, B.A.W. was facing termination for missing seven visits at the time of the trial.

B.A.W. currently resides with her mother and her second-oldest daughter. Dr. Loving conducted another evaluation on January 7, 2010. His diagnosis was the same as in 2004, including "concerns about [B.A.W.'s] substance abuse and . . . [self-defeating] personality style . . . [which] prevents more active effective functioning." Given B.A.W.'s unsuccessful attempts at rehabilitation, further treatment would not remedy the problems that precluded her from being an effective parent.

Loving also conducted a bonding evaluation of J.T.W. and B.A.W. J.T.W. exhibited a "moderately strong attachment with both of the foster parents." J.T.W.'s attachment with B.A.W. was "positive" but "fairly weak." Therefore, severing contact would not cause serious or enduring harm to J.T.W.

DYFS filed a complaint for guardianship of J.T.W. and to terminate B.A.W. and T.W.'s parental rights on September 4, 2009. After a guardianship trial, Judge White gave an oral decision on May 27, 2010, terminating B.A.W.'s parental rights. The judge applied the four prong test found in N.J.S.A. 30:4C-15.1(a)(1)-(4). As for the first prong, the judge found that J.T.W. was "deprived of both of his parents' attention and care," because of the protracted hospital stay necessitated by B.A.W.'s use of narcotics during pregnancy. B.A.W. also knew that T.W. would not provide support for the child. Despite knowing that she would be primarily responsible for the care of J.T.W., she failed drug screenings, did not provide a "safe and stable home" or otherwise "take care of herself." J.T.W. had spent his entire life "out of his mother's care" due to these circumstances. The same facts also proved the second prong of N.J.S.A. 30:4C-15.1(a).

The judge also found by clear and convincing evidence that DYFS had "made very reasonable efforts" assisting B.A.W. DYFS had provided "substance abuse treatment . . . , psychiatric and psychological evaluations . . . and substance abuse treatment."

There were no adequate alternatives to the termination of B.A.W.'s parental rights. Her mother was not suitable, and there were no other relatives that were capable.

The judge also found that termination of B.A.W.'s parental rights would not do more harm than good. B.A.W.'s affection for the child did not "run deep or firm enough to represent a love that is in his interest, but rather reflects her need to have a child that loves her, and our law does not recognize that as a defense to the child's best interest." In his foster parents' home, J.T.W. was "doing very well . . . and is cared for lovingly and affectionately." Although B.A.W. wanted to continue a relationship with J.T.W., that was irreconcilable "with th[e] child's best interest."

On appeal, B.A.W. contends that DYFS failed to produce evidence to meet its burden to satisfy the first, second and fourth prongs in N.J.S.A. 30:4C-15-1(a). Specifically, she argues that: (a) DYFS failed to prove that B.A.W. caused or would have caused J.T.W.'s safety, health or environment to be endangered; (b) that B.A.W. is unwilling or unable to provide a safe and stable home for J.T.W.; and (c) termination of B.A.W.'s parental rights will do more harm than good. We disagree.

We defer to a trial judge's factual findings when they are based on credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We will reverse only where those findings are "so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993).

B.A.W.'s contentions are clearly belied by the evidence. After careful review, we conclude that the proofs contain clear and convincing evidence to support Judge White's findings. The judge thoughtfully applied the correct legal standards to the facts she found in ultimately concluding that all four statutory prongs were met and that termination was required. Accordingly, we discern from the record no sound reason for disturbing the judge's findings.


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