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Division of Youth and Family Services v. D.P

April 11, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-104-10C.

Per curiam.



Submitted March 8, 2011

Before Judges Carchman, Graves and Waugh.

Defendant appeals from a judgment terminating her parental rights to her children, X.M. and N.M., and granting guardianship to the Division of Youth and Family Services (DYFS or the Division). We affirm.

These are the relevant facts adduced at the hearing. Defendant, 34, is the mother of five children - X.M. and N.M., as well as L.L., born September 17, 1997; H.L., born September 10, 1998; and V.B., born July 16, 2009. None of the children are in her custody.

Defendant gave birth to X.M. on December 5, 2002. The child was born with a "bilateral club foot deformity," and this condition required "continual treatment." Defendant first came to the attention of DYFS when it was determined that defendant stopped taking X.M. to the doctor. According to defendant, medical benefits had been terminated, but they had since been reinstated in approximately September 2004.

DYFS maintained contact with defendant and the child and provided then with necessities for the child. During this supervision period, defendant gave birth to N.M. There appeared to be no significant issues regarding care of the children, and in a visit with DYFS worker Lika Brown in March 2005, X.M. "appeared to be well-cared for and not in any form of danger." In fact, over the next few years, except for a domestic incident requiring defendant and the children to be placed in a shelter, defendant and the children's lives were relatively stable, and the children showed no signs of abuse or neglect. That changed in 2008.

On May 1, 2008, DYFS worker Jenny Marzano was contacted by an employee of a "homeless residence," who stated that "[defendant] and her children [had] been residing at [the] facility for the past 2 months" without incident. However, that day at approximately 2:00 p.m., defendant asked Angelique Williams, a fellow shelter resident, to watch her children "for fifteen minutes" while she went out with a man named "Poppi." Eventually, after "it got late," Williams returned to the shelter with the children, causing the facility to call the Division. Marzano spoke with X.M. and noted that he "appeared to be clean and well cared for."

Also present was K.C., a longtime friend of defendant who indicated that she had learned of what happened by sheer coincidence when she attempted to contact defendant through Williams's cell phone. She further stated that "she ha[d] never known [defendant] to do anything like this and could only suspect that something happened to her." K.C. told Marzano that she did not know "Poppi" but showed a willingness to care for the children. When asked if he knew K.C. and was familiar with her home and family, X.M. responded in the affirmative.

DYFS was notified of defendant's abandonment of the children and the children were temporarily placed with K.C., who had two children of her own. In her report, the DYFS caseworker reported that X.M. and N.M. "were abandoned by their mom."

The next day, defendant called the caseworker to announce "that she was on her way as she stopped to go food shopping for the children." The caseworker requested that defendant come to the DYFS office. The worker noted that although defendant "denied being high at the present moment," she "appeared to be under the influence as she was lethargic, nonchalant and had a flat affect" in addition to "glazed" eyes. According to the caseworker's report:

[Defendant] stated that she does not understand why Angie [Williams] said she abandoned the children as she had an arrangement with her: when she has to go out [Angie] was to stay with her children and when Angie has to go out, she does the same. When asked, [defendant] stated that she left around "5 something" and that she went out with a friend "Billy Garcia" [when] he asked her to take a ride with him. [Defendant] agreed to take a ride with Mr.

Garcia to Buffalo NY being ambivalent of the location's distance. When asked why she did not call when the time of curfew by the shelter was approaching, [defendant] replied that she did not know that DYFS was going to be called and she assumed that Angie was going to stay at her friend's house with the children. [Defendant] further stated that she knows that the shelter allows them to sleep out of the shelter a max of 5 times prior to being dismissed permanently. [Defendant] stated that she assumed that she was to find Angie and her children at their friend's house at the time of her arrival from Buffalo.

Defendant also indicated that the "friend" to which she referred was O.B., a "previous paramour" whose abuse was the cause for her current residence in a shelter. She further stated that "she could not count the times that [O.B.] hit her" but that "the children never witnessed any physical abuse between them as they were always sleeping when he hit her." The caseworker informed defendant that neither she nor the children were to have contact with O.B., that she could not live with K.C. while the children remained there and that she had to attend a hearing on May 5, 2008, when custody of the children would be decided.

On May 5, 2008, the Division filed an OTSC for custody, care, and supervision pursuant to a Dodd*fn1 removal. The order acknowledged defendant's actions and noted that "[b]esides homelessness she admitted to using marijuana every other weekend." The court found that "the removal of the children [was] required due to imminent danger to the children's [life], safety or health." The judge continued custody with the Division, required Defendant to undergo a "CADC evaluation,"*fn2 and permitted supervised visitation by defendant and M.M., the children's father. In addition, the court found that the Dodd removal "was appropriate and in the best interest of the children" and that it would "be contrary to the welfare of the children to remain in the custody of their biological mother as she is homeless and has admitted to consuming marijuana." It also ordered the Division "to assist [defendant] with housing and refer her to different agencies that [could] provide her with housing assistance."

DYFS referred defendant for a Substance Abuse Initiative (SAI) assessment, noting that she had admitted to using marijuana and "appeared to be under the influence" on May 2, 2008. That same day, the Division conducted an assessment of K.C.'s home. The worker reported "no safety concerns" but indicated uncertainty about whether "the home would meet standards for licensing." At a subsequent "Family Team Meeting," defendant "was made aware of all the behaviors that were in need of modification in order for the goal of reunification to occur," including any contact with O.B. Additionally, according to the worker:

[Defendant] was explained that she will be required to complete the following in order to reunify with her children: complete a CADC assessment and comply with the recommendations of such, she would be scheduled to undergo a Psychological Evaluation and is to comply with the recommendations of such, she is to be able to free herself from any domestic violence relationships and is to accept Domestic Violence counseling services; she is also to secure and maintain stable housing. [Defendant] [was] explained that our goal, which is reunification with the children, has a mandated timeline by the ASFA laws which is a maximum of 15 months prior to finalizing a permanent plan. In simpler terms, [defendant] was explained [sic] that she had a year to complete or initiate the above-mentioned recommendations.

K.C. also "agreed to arrange supervised visits in her home" but was warned that "the children could NOT be alone with [defendant] ANYTIME."

DYFS learned that K.C. had outstanding warrants against her so the children were removed from her home to be placed in foster care with M.D., a resource parent. En route, X.M. and N.M. "recalled an incident of domestic violence where [defendant] took a knife out on 'Papi' and made him bleed," resulting in "Papi" getting arrested and defendant crying.

Defendant failed to appear for her SAI assessment. When contacted, defendant informed DYFS worker David Brito (Brito) that she "was not involved with her husband and [did not] live with him and [had] nothing to do with [M.M.]." She also indicated that she was "looking for an apartment" and had applied for Section 8 housing. Nevertheless, she failed to appear at yet another substance abuse evaluation.

The court continued X.M. and N.M.'s custody and permitted visitation supervised by M.D.

Brito contacted M.D. on June 4, 2008, and learned that she was taking both X.M. and N.M. to the dentist the next day because "their teeth [were] really bad." In addition, M.D. indicated that X.M. may need therapy "because he sometimes talk[ed] about how his mother abandon[ed] him." When Brito contacted defendant that same day, she informed him that she was living with O.B. and refused to give Brito any of O.B.'s personal information.

In June 2008, defendant visited her children in the DYFS office and spoke with Brito. She expressed a willingness to participate in domestic violence counseling, CADC assessments, and a drug treatment program, although she admitted to smoking marijuana the previous week.

The DYFS worker who drove the children to and from the next visit reported that X.M. again spontaneously told the story of the fight in which defendant made "Papi" bleed. According to the worker, N.M. "started crying uncontrollably as [Brito] was interviewing [defendant]."

That same day, defendant underwent a psychological evaluation by Robert Kanen, Psy.D. Following his session with defendant wherein she discussed her background, exposure to domestic violence with O.B., and violence and drugs in her upbringing, Kanen composed defendant's personality profile and reached the following conclusions:

Personality testing strongly indicates a longstanding personality disorder. She may experience a recurrent and pervasive mild to moderate depression with a general state of sadness and mood disharmony. She is easily distracted by external circumstances. She distances herself from social relationships and shows limited enthusiasm for most activities, preferring a solitary life. She appears to be indifferent to social relationships, leaving her at great risk for not paying attention to her children and neglecting them.

She has a tendency to become self-absorbed and lost in daydreams that confuse fantasy with reality. She may be cognitively distracted by thoughts that intrude on normal social communications.

[Defendant] is functioning in the Borderline range of intelligence, with an estimated Full Scale IQ of 75, placing her above 5% of the general population and below 95%. . . . She is a marijuana abuser but denies the impact her substance abuse has had on her day-to-day functioning, including her parenting. She started smoking marijuana at the age of 16 and began using every day at the age of 18. She last used marijuana one week ago. She is not mentally ill but shows evidence of longstanding personality problems characterized by behavioral apathy, depressive tendencies, and a strong dependency on supportive institutions to assist her in functioning in daily life. She is presently homeless, unemployed and has an unstable lifestyle. . . .

She assumes a passive role in most situations and avoids interpersonal involvement. These factors combine to put her at risk for continued neglect of her children. She is not likely to be adequately sensitive to the needs of her children. Her cognitive deficits leave her with impairments in judgment, reasoning and decision making.

It is this examiner's opinion that at this time [defendant] cannot provide her children with a permanent, safe and secure home. Returning her children to her care would expose them to an unnecessary risk of harm.

Kanen recommended that defendant enter substance abuse treatment, find employment and stable housing, complete parenting classes, and participate in individual psychotherapy.

Two days later, Brito, after a home visit where X.M. recalled times when his mother left him alone, called defendant to confirm her next visit, which was scheduled for June 18, 2008. When Brito raised the topic of relative resources, defendant replied that "her mother could not take care of her children and she does not have a stable apartment." However, defendant indicated that "her Aunt Marsha*fn3 " might be a suitable option. Defendant also requested that the Division provide her with a Section 8 voucher or otherwise assist her in her housing search.

Defendant missed two additional SAI evaluations*fn4 , and her case was terminated. Brito then referred defendant to C-Line Community Outreach Services Inc. (C-Line) for parenting classes, and defendant stated that "she want[ed] her children back and [was] going to start working [to] save up for an apartment."

Also in July 2008, Brito spoke with M.D. At that time, she indicated that "she would like to adopt [X.M. and N.M.] if she had the opportunity to." When Brito attempted to contact defendant on July 28, 2008, the day of her SAI assessment, he was unsuccessful.

Following a hearing where the court continued custody and ordered defendant to participate in various programs and services, defendant informed Brito that she was no longer living or "talking with" O.B. and was instead living with K.C. in Bayonne. In addition, defendant offered I.G., O.B.'s mother, and "her brother's girl friend" as potential caretakers for X.M. ...

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