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New Jersey Division of Youth and Family Services v. K.L.W. and P.L.J

May 3, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-191-09.

The opinion of the court was delivered by: Grall, J.A.D.




Argued March 28, 2011

Before Judges A.A. Rodriguez, Grall and C.L. Miniman.

The opinion of the court was delivered by GRALL, J.A.D.

P.L.J. and K.L.W., the mother and father of K.K.W., appeal separately from a judgment terminating their respective parental rights. They primarily argue that reversal is required because the Division of Youth and Family Services (Division) failed to meet its obligation to "initiate a search for relatives who may be willing and able to provide the care and support required by the child." N.J.S.A. 30:4C-12.1(a). The Division and the child's Law Guardian urge us to affirm. We have consolidated the appeals and hold that the Division lost sight of its duty to proceed in K.K.W.'s best interests by not carrying out its obligation under N.J.S.A. 30:4C-12.1(a). Because the Division's non-compliance affected the trial judge's analysis of K.K.W.'s best interests under N.J.S.A. 30:4C-15a(1)-(4), we reverse and remand.

K.K.W. was born in late March 2008. At the time of her premature birth, K.K.W. and her mother tested positive for cocaine and K.K.W. required intensive care. P.L.J. had not had prenatal care, and she told hospital staff about her history of drug abuse and depression. She admitted to having no place to live with the baby and none of the furnishings and supplies K.K.W. would need. Subsequently, P.L.J. stipulated that her conduct amounted to neglect of K.K.W.

P.L.J. was about thirty-five years old when K.K.W. was born. K.K.W. is not P.L.J.'s first child, and this is not P.L.J.'s first encounter with the Division. Prior allegations of P.L.J.'s abuse and neglect were not substantiated, but she voluntarily transferred custody of her first four children to their maternal grandparents.*fn1 When K.K.W. was born, P.L.J.'s other children - a son who was eighteen and three younger daughters - had been in their grandparents' care for about three years. According to P.L.J., she had not been able to get back "on her feet."

P.L.J. told K.K.W.'s caseworker that her older children were with her parents, who had tried to see K.K.W. in the hospital but could not because of rules for visitation in the intensive care unit.*fn2 Nonetheless, P.L.J. asked the caseworker not to contact her parents because they did not know about her drug use. According to one caseworker, the Division did not contact the maternal grandparents out of concern for P.L.J.'s privacy, and according to another, because they had no way to contact them.

P.L.J. asked the Division to place K.K.W. with the baby's father, K.L.W. He was about forty years old when the child was born and was not living with P.L.J. The caseworker spoke to K.L.W., but he said he worked as a long-distance truck driver and could not take the baby at that time. K.L.W. told the caseworker that he would ask relatives with whom he lived to assist him and agreed to meet with a caseworker so that his home could be assessed.

K.K.W. has never been in the custody of a parent or relative. On April 3, 2008, the Division filed an order to show cause and a complaint alleging abuse and neglect and obtained custody of K.K.W. At that time, K.K.W. had not yet been discharged from the hospital. Although K.K.W. did not go through withdrawal, she had feeding problems and other medical issues. Because of her fragile condition, K.K.W. was kept in the hospital until May 2008. Upon discharge, K.K.W. was placed with St. Clare's Home for Children, an agency that addresses the needs of medically fragile children, where she remained until September 2008.

Although an April 25, 2008 summary of this case prepared and approved by the Division includes the names and the address of K.K.W.'s maternal grandparents and her sisters in their custody, when K.K.W. was released from St. Clare's in September 2008, she was placed with Mrs. T. Mrs. T. was a single resource mother who had two children she previously adopted living with her, and she took in another child after K.K.W. was placed in her home. K.K.W. was about five and one-half months when she went to live with Mrs. T.

The Division received additional information about relatives in April 2008. K.L.W. provided the names and phone numbers of relatives in New Jersey who might be willing to care for the child.*fn3 But for reasons not reflected in the record, the Division was unable to connect with those relatives.

After K.K.W. was placed with Mrs. T., the parents identified additional relatives. In October 2008, P.L.J. asked the Division to consider a cousin who was caring for a fifteen-year-old child under the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7. According to the caseworker, that cousin told her he and his wife were not in a position to care for a medically fragile child with a condition that involved drugs.*fn4

By December 2008, Mrs. T. expressed interest in adopting the baby. Although the Division still planned to reunify K.K.W. and her parents, it made no effort, at least none discernible on this record, to place K.K.W. with a relative. On February 27, 2009, the Division planned to seek termination of parental rights and have K.K.W. adopted. The caseworker and supervisor who prepared and approved that plan mistakenly reported that the eleven-month-old K.K.W. had been in the care and custody of the Division for twelve months. Actually, K.K.W. had been in the Division's care for less than eleven months.

Eight months after K.K.W. was placed with Mrs. T., in May 2009, the Division filed a guardianship complaint and proposed adoption by Mrs. T. Thereafter, both parents identified additional relatives as potential caregivers. P.L.J. asked the Division to consider her sisters. One sister was living in South Carolina. While it is not clear when P.L.J. named her sisters, orders and transcripts of case management conferences starting on June 18, 2009, indicate that the Division was directed to arrange for an assessment of the South Carolina sister's ability to care for K.K.W. Those records also reflect that the Division advised the judge that it had completed the paperwork as directed. Nevertheless, at trial a caseworker testified that P.L.J. never gave him the information he needed to contact either of P.L.J.'s sisters. Given the representations of prior caseworkers about initiating the assessment, we assume that the testimony was inaccurate with respect to the sister living in South Carolina. In any event, the record does not disclose the result, if any, of the investigation of P.L.J.'s sister in South Carolina.

Admittedly, P.L.J. played a role in K.K.W.'s initial and continued placement with Mrs. T. It was not until August 2009 that P.L.J. told her parents about K.K.W.'s status. Before that, she had led them to believe that the baby was with a relative of K.L.W. Once the maternal grandparents knew that K.K.W. was in foster care, the maternal grandmother and P.L.J. made arrangements for the ...

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