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New Jersey Division of Youth and Family Services v. L.B. and S.C.

June 29, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-65-10.

Per curiam.



Argued May 17, 2011

Before Judges Carchman, Messano, and Waugh.

Defendants S.C. (Sharon) and L.B. (Louis) appeal from the final judgment of guardianship terminating their parental rights to their daughter R.B. (Robin), now four years old.*fn1 We affirm.


We discern the following facts and procedural history from the record on appeal.

Robin was born on March 22, 2007. At that time, Sharon was twenty-two years old, and Louis was thirty-one. Sharon was living in an apartment in Lawnside. She had completed eighth grade, was unemployed, and had no other children. Sharon and Louis resided together periodically during Robin's first six months of life. Louis helped care for Robin, and participated in her late night feedings by preparing bottles of formula.

Louis has a GED and was also unemployed. He has fathered two other children who resided with their respective mothers. He has a criminal history, primarily for drug-related offenses. At the time Robin was born, Louis's offenses included two convictions for possession of a controlled dangerous substance (CDS) with the intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7. The first conviction was in 1998. Louis was sentenced to a three-year term of imprisonment. Louis was paroled, but was returned to prison for violating parole. The second conviction was in 2005. He was sentenced to a three-year term, with an eighteen-month period of parole ineligibility.

Louis was also convicted of possession of heroin/cocaine with intent to distribute in 2001. He received a five-year prison term, with a twenty-seven month period of parole ineligibility. In 2002 he pled guilty to escape. He was sentenced to a three-year prison term, concurrent to the sentence he was then serving. Louis also had municipal court convictions for possession of marijuana and for criminal mischief.

The Division of Youth and Family Services (DYFS) became involved with the family on September 16, 2007, when it received a referral from Darcy Hayes, an emergency-room physician. Hayes reported that Sharon had brought Robin, who was then six months old, to the hospital by ambulance because she had been vomiting and had diarrhea. Hayes determined that Robin had no symptoms, but reported that Sharon, whose thoughts were "disorganized," had previously brought Robin to the emergency room under similar circumstances. Hayes diagnosed Sharon, who had initially refused to undergo a psychiatric evaluation, as suffering from "postpartum psychosis."

Hilda Torres, a DYFS worker, went to the hospital and spoke to Sharon. Sharon admitted that she occasionally "smoked wet," which is marijuana laced with phencyclidine hydrochloride (PCP). She told Torres that Louis, whom she said also used drugs, had beaten her and had recently hit her while she was holding Robin.*fn2

Throughout the interview with Torres, Sharon expressed fears that she had contracted HIV from Louis, that people were following her, that Louis had installed cameras in her apartment, and that he had stolen some of Robin's things. Nonetheless, Torres concluded that Robin appeared "well cared for, smiled easily, and seemed content in [her] mother's arms."

Later that day, Juliana Pedillo, a psychiatric nurse, evaluated Sharon. Sharon refused to provide a urine sample for a drug test. Pedillo determined that Sharon should be admitted to the hospital because she presented a danger to herself and to Robin as a result of her postpartum depression, feelings of paranoia, and admitted drug use.

On the same day, Louis called Torres to report that he suspected that Sharon was using PCP. He told her that, although Sharon was generally a good mother, she appeared to be going through a mental "thing." He denied assaulting Sharon, but claimed that she had fought, screamed, hollered, and physically confronted him. Louis said that he left Sharon a few days earlier to "avoid further problems," and had been staying with his mother B.B. (Barbara).

Sharon was admitted to the crisis center later that evening. DYFS determined that neglect was substantiated and removed Robin from Sharon's custody pursuant to a notice of emergency removal. Robin was placed in a foster home. DYFS served Louis with the emergency order by leaving a copy with Barbara. DYFS explored placements with relatives, including Barbara and a maternal aunt.

On September 18, 2007, DYFS filed a verified complaint and order to show cause (OTSC) seeking temporary custody of Robin. The Family Part entered the OTSC on the same date, awarding custody to DYFS. The OTSC also awarded supervised visitation to Sharon and Louis. DYFS was ordered to arrange for home evaluations of Barbara and the maternal aunt, psychiatric evaluations of Sharon, and, if necessary, a substance-abuse evaluation of Louis.

On September 25, 2007, Jacqueline Bickhart, a DYFS caseworker, left a message on both the maternal aunt's and Barbara's answering machines asking whether they would be interested in assuming custody of Robin. On September 26, 2007, the maternal aunt informed Bickhart that she would be unable to assume custody of Robin. Another maternal aunt subsequently informed Bickhart that she too would be unable to care for Robin because Sharon was "already harassing her and causing trouble." On October 1, 2007, DYFS agreed to reschedule the date of Barbara's home evaluation because her electricity had been turned off for nonpayment.

On October 3, 2007, Sharon's maternal cousin J.D. (Jane), who was then twenty-six years old, contacted DYFS and expressed an interest in caring for Robin. Jane resided in Camden in a three-bedroom townhouse with her nine-year-old daughter and her seven-year-old son. Sharon initially opposed placement of her daughter with Jane.

On the same day, Sharon submitted to a psychiatric evaluation at the Steininger Crisis Center. The examining physician, whose identity is not clear from the record, found that Sharon had "no issues to discuss at present time," and that no medication was indicated.

On October 9, 2007, the return date of the OTSC, the judge continued DYFS's custody of Robin, awarded Sharon and Louis weekly supervised visitation, and ordered Sharon and Louis to undergo psychological and substance abuse evaluations.

On October 12, 2007, Louis informed Bickhart that he was interested in assuming custody of Robin. Louis told Bickhart that he rented a room from his employer in exchange for work, but that he had been out of work as of June due to a car accident. He also said that he had attended Camden County Community College in 2002.

On October 19, 2007, Sharon underwent a psychological evaluation with Larry Seidman, Ph.D. In his report, Seidman diagnosed Sharon as suffering from "Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic." He found that Sharon does not present with psychological stability to ensure appropriate care and protection for her infant child. Therefore, it can be said with a reasonable degree of psychological certainty that [Sharon] should not be given custody of her infant until she evidenced meaningful and tangible progress in compliance with the treatment plan presented in . . . this report.

He recommended that Sharon undergo a psychiatric evaluation, and also that she have weekly psychotherapy to enhance her coping skills.

In October and November 2007, Sharon consistently visited with Robin. Sharon played with her daughter and brought her clothing and food during some of the visits, but during another visit Sharon was disruptive and threatened to take Robin away from the parenting supervisor.

Louis accompanied Sharon to some, but not all, of the visits. Louis did not, however, attend scheduled psychological evaluations, nor did he attend drug screenings on October 12 and 26, and November 9, 2007. On November 16, 2007, Louis told Bickhart that he planned to let Sharon complete all of the programs required by DYFS, so that, once Robin was returned to Sharon, he too would be reunited with her.

During that time, Sharon tested positive for PCP on October 22, October 30, and November 6, 2007, and refused to undergo drug screens on October 11, and December 7, 2007. Sharon again tested positive for PCP on December 11, 2007. DYFS referred Sharon to Genesis Treatment Program for outpatient substance-abuse counseling.

On December 3, 2007, Sharon underwent a psychiatric evaluation with Michael Friedman, D.O. He agreed with Seidman's recommendations, concluding that Sharon's "overall prognosis is guarded . . . due to her poor insight and lack of motivation regarding her psychiatric symptomatology." He found that Sharon would clearly benefit from antipsychotic medication and a dual diagnosis (psychiatric and substance-abuse) outpatient program.

On December 17, 2007, the judge conducted a fact-finding hearing. The judge found that Sharon had abused or neglected Robin due to her drug use and mental instability and that Louis was unable to care for Robin, thereby placing her "at significant risk of harm." Both Sharon and Louis refused to undergo drug testing at the hearing.

On the following day, Sharon started treatment at "My Father's House," a program for the treatment of substance abuse. She made substantial progress during her treatment, and regularly attended sessions two to three times a week. She tested negative for illicit drugs throughout the five-month course of treatment. Miriam Wright, a counselor, reported that Sharon had done "exceptionally well in all areas of her treatment."

Robin was placed with Jane, Sharon's maternal cousin, on January 11, 2008, despite Louis and Sharon's preference that she be placed with Barbara, the paternal grandmother. On January 22, 2008, Bickhart again contacted Barbara. Barbara said that she would like to care for Robin, but was hesitant to do so because of Sharon's "erratic" behavior. Barbara also said that Louis, whom she described as "basically homeless," used her residence as a home base. Bickhart told Barbara that, if she decided to pursue custody of Robin, there would have to be a home evaluation and she would be required to attend classes. Barbara responded that it "may not be the best decision" for her to assume custody of Robin, but she would get back to Bickhart with a decision. DYFS has no record that she did so. In February 2008, DYFS sent Barbara a letter informing her that she had been ruled out as a potential caregiver.

On February 8, 2008, Louis was arrested for possession of a CDS with intent to distribute within 1000 feet of a school. On June 10, 2008, he pled guilty to the charge. He was sentenced to five years of probation, with 122 days of incarceration as a condition. However, because he had been in jail for 122 days during different periods between his arrest and sentencing, he was essentially sentenced to time served.

A compliance review was held on February 25, 2008. The judge ordered Sharon, who was doing well at "My Father's House," to attend substance abuse treatment with a Mental Illness Chemical Addiction (MICA) component. However, Miriam Broderick, the director of "My Father's House," informed Bickhart that she would "hate to see [Sharon] leave the program and go to a MICA program because she is doing so well." Similarly, Janneth Parra, a counselor with the State Substance Abuse Initiative (SAI) program, reported that Sharon was doing very well at "My Father's House," and that Sharon's behavior, which had initially appeared to result from mental health issues, had subsided since she stopped using PCP. Parra concluded that a referral to MICA was unnecessary because Sharon "would not benefit from the services."

After completing a substance abuse consortium case conference, DYFS and SAI counselors decided that, because Sharon was "doing well at [that] level of care," she would be referred for psychological services only if recommended after reevaluation. On March 6, 2008, William Marciante, M.Ed., determined that Sharon did not display any clinically significant symptoms and that psychotherapy and psychiatric services were not warranted at that time. On May 30, 2008, Sharon successfully completed the substance-abuse program at "My Father's House."

On June 4, 2008, the judge entered an order directing DYFS to return Robin to Sharon by July 3, 2008. Mother and child were reunited on July 2, 2008. The judge subsequently entered an order terminating the litigation.

On July 15, 2008, Sharon reported to a police officer that Louis had assaulted her, tried to steal her welfare money, attacked her in front of Robin, and threatened to kill her. On July 18, 2008, two patrolmen went to Sharon's apartment to have her sign a complaint against Louis, but Sharon refused to sign it because she said she was afraid of Louis.

On July 24, 2008, DYFS received a referral from an anonymous source reporting that Sharon had been involved in an altercation on the streets of Camden with Louis's sister, during which Robin was knocked out of her baby carriage. The altercation reportedly occurred when Sharon intervened in an argument about money between Louis and his sister.

Later that evening, Clareatha Foushee and Charmaine Lumpkin, caseworkers from DYFS's Special Response Unit, went to Sharon's apartment to investigate. Sharon claimed that Louis's sister had "jumped" her, but denied that Robin had fallen out of her stroller. The caseworkers observed that Robin appeared to be uninjured, clean, and appropriately dressed. They also found that the apartment was clean, adequately furnished, had utilities in working order, and that there were food and baby supplies. Sharon apologized for her behavior and seemed relieved when the caseworkers informed her that they did not see any reason to remove Robin. DYFS found the allegation of neglect to be unfounded.

On the following day, Sharon brought Robin to the DYFS office and asked Catherine Williams, one of the caseworkers who testified at trial, for help in getting away from Louis. She told Williams that he beat her and had tried to "strangle her." Sharon claimed that the police would not help her because Louis was a police informant. She also accused the police of placing cameras in her apartment and watching her. She further claimed that there were ghosts in the apartment, who had caused the death of a previous tenant and were now trying to hurt her. She said she slept in the living room to get away from the ghosts. She also told Williams that "perverted things happen in the apartment," and began to speak about demons.

After Williams consulted with her supervisor, DYFS offered to have Sharon admitted to a domestic violence shelter. Sharon refused to go and the police were contacted. When the police and EMTs arrived, Sharon denied that she needed help, denied having talked about cameras, ghosts, and demons, and refused to go to a crisis unit or to undergo a drug test. Robin was removed from Sharon's custody on that day pursuant to an emergency removal. She was placed in a foster home.

Later that day, Williams received a call from Rashemma Harris, an intake worker at the Camden North DYFS office. Harris told Williams that Sharon had come to her office because she was unhappy with the Camden South DYFS office and wanted help getting Robin returned to her custody. Harris said that Sharon, who claimed that Louis was a police informant and that there were cameras and ghosts in her apartment, appeared to be "suffering from mental health issues."

On July 28, 2008, Sharon returned to the police department and asked to sign a complaint against Louis. She also accused the police of installing cameras in her apartment, and claimed that they would not help her because Louis was an informant. Sharon then wandered the halls looking for the cameras and computer screens. She eventually had to be escorted out of the station. A Camden Police officer informed DYFS that Louis was not a police informant.

On July 29, 2008, DYFS filed a verified complaint and order to show cause seeking temporary custody of Robin. Although Louis was not present, Sharon appeared in court and told the judge that she now wanted Robin returned to Jane's custody. DYFS opposed that placement because Jane had been uncooperative with them during the first placement. The judge issued an order reflecting her findings that Sharon was unable to care for Robin because of her mental illness. She awarded physical custody of Robin to Jane. The order provided Sharon with supervised visitation, and ordered her to undergo psychological and psychiatric evaluations.

For reasons that are not clear from the record, DYFS informed Jane that it would not provide her with foster care funds for Robin. Jane nonetheless agreed to accept custody, and Robin was placed in her care on August 5, 2008. Robin was still living with Jane, who wants to adopt her, at the time of trial.

On September 8, 2008, Williams escorted Sharon to Philadelphia for a psychiatric evaluation with Abayomi Ige, M.D., a psychiatrist. Ige described Sharon as "anxious and slightly irritable," but alert and fully oriented to time and place. He reported a history of . . . PCP abuse and possibly dependence with the sequelae of psychotic symptoms including auditory and visual hallucination, paranoid feeling, and paranoid delusion . . . . Her psychotic symptoms seem secondary to abuse of PCP. Progressively, this . . . continuous abuse of PCP could lead to additional brain damage and possibly a permanent psychotic state. [Sharon] was counseled as such. A return to status quo of her premorbid state will depend on [Sharon] totally abstaining from PCP and other illegal psychoactive substances.

Ige concluded that Sharon's reunification with her daughter should be contingent on her remaining "completely drug free." On September 18, 2008, Marla Deibler, Psy.D., a psychologist, performed a court-ordered evaluation of Sharon. Sharon told Deibler that she had been enrolled in a special education program in school. Deibler, who did not conduct an IQ test, found "no evidence of psychomotor agitation or retardation," but found that Sharon's "thought processes were disorganized and dominated by paranoia." She diagnosed Sharon as suffering from "schizophrenia, paranoid type." She recommended that Sharon be evaluated for substance abuse.

Deibler also reported that Sharon's responses to a parenting inventory test fell within appropriate limits on four of the five levels measured, but that her base of parenting knowledge and skills were problematic. However, she expressed concerns about Sharon's "ability to appropriately and safely parent and supervise her child based on her psychotic symptoms and lack of insight." She recommended that all contact between Sharon and Robin be supervised until Sharon had "demonstrated a period of psychological stability." Deibler also recommended a psychiatric evaluation, psychotherapy, parent training, unannounced substance abuse screenings, job training, and finding alternative housing.

Meanwhile, DYFS scheduled weekly supervised visits between Sharon and Robin. During a supervised visit with Robin on September 11, 2008, Sharon told Williams that she had not slept because the ghosts had been very active moving dishes and turning off the television, and that she had heard the cameras in her apartment turning on and off.

During a supervised visit on September 26, 2008, Williams, who had been trained in recognizing signs of substance abuse, reported that Sharon appeared to be "high" on some substance because she was "slurring her words and was quite agitated." Sharon again claimed that there were cameras and ghosts in her apartment. She also threatened to call Trenton and have Williams, whom she called a "crack head," drug tested. During another visit, Williams reported that Sharon smelled like "burning rubber," which Williams characterized as common in people smoking PCP.

During a supervised visit on October 8, 2008, Sharon, who appeared to be very tired, told Williams that she had not slept because there were spirits in her apartment who had held her down so that she could not breathe or move. Sharon also claimed that she saw a face on the couch and heard cameras being turned on and off.

Williams, who had been assigned to the case in April 2008, had her first contact with Louis on October 30, 2008, about two weeks after his sentencing, when he appeared in court for a case management conference. Louis requested visitation with Robin. As a result, DYFS conducted an evaluation of Barbara's two bedroom apartment, where Louis resided. Williams reported that Louis slept on a mattress on the floor and planned to have Robin sleep in his room, although he had no bed, dresser, or clothes, other than some jackets, for Robin. Moreover, Louis had no lights in his room, and Williams recommended that he purchase a lamp, which he did. Louis also purchased covers for the electrical outlets. He had not arranged for daycare.

Despite the lack of planning for the child at Barbara's apartment, DYFS arranged for Louis to have unsupervised visitation with Robin, some of which occurred at Barbara's home. Other visits occurred at the DYFS office. Louis was often late for those visits. Williams testified at trial that DYFS had no concerns at that time regarding Louis's unsupervised visitation with Robin, other than his continued contact with Sharon. Williams reported that on November 19, 2008, Robin played with Louis during their visit at the DYFS office, and that Robin appeared "very happy." Louis tested negative for drug use on that date, although he had failed to attend a substance abuse evaluation on November 13, 2008.

During the same time period, Sharon often became confrontational with the DYFS staff during visits with Robin. For example, on November 13, 2008, Sharon called Williams a "fucking liar" and a "stupid bitch," accused Williams of wanting to have sex with Louis, and held tightly to her daughter and refused to let her go. On that occasion, and during other visits, Sharon's behavior was so disruptive that Williams had to call for assistance. During those visits, Robin appeared "very tense" and "scared," and looked to the caseworkers "to come and get her," especially when Sharon began "screaming and yelling."

On November 21, 2008, Louis underwent a substance abuse evaluation with the Center for Family Services. Louis admitted that he had three convictions for attempting to sell illicit drugs, but claimed that he only drank beer and smoked cigarettes occasionally. Although Louis tested negative for drug use, Fred Sass, a drug counselor, recommended that Louis undergo an "extended assessment."

Sass recommended that Louis participate in the Center's extended assessment program, which met once a week for one-to-four weeks and would provide Louis with education and support. After Louis failed to appear for the Center's sessions scheduled on January 15, and January 21, 2009, his case was closed for non-compliance.

On December 1, 2008, the police were dispatched to Sharon's apartment based on a report by Louis that Sharon was smoking "wet," and was hallucinating. Sharon, who yelled and cursed during the investigation, was arrested for disorderly conduct and resisting arrest.

During a supervised visit on December 11, 2008, Williams observed that Sharon was disheveled, agitated, slurred her words, smelled like smoke, and appeared to be "high." Sharon screamed that Robin was "being starved" and that DYFS "didn't really care." Williams ended the visit and the police escorted Sharon out of the building. Sharon subsequently accused Williams of breaking into her apartment, slashing her furniture, and drugging Robin.

On December 22, 2008, Sharon voluntarily appeared for a substance abuse evaluation a week before it was scheduled. Michele LaBaw, a counselor, informed Williams that Sharon had been loud, argumentative, and paranoid. Sharon refused to undergo a urine test, cursed at the counselor, and threw the counselor's papers into the garbage. LaBaw rescheduled the evaluation for December 29, 2008, but Sharon missed the evaluation because she fell asleep in the waiting room.

DYFS referred Sharon for another substance abuse evaluation, which she attended on January 16, 2009. Terry Fox, a counselor, reported that Sharon appeared paranoid, refused to comply with the evaluation, became confrontational, and had to be escorted from the building. Sharon completed the evaluation on January 26, 2009. She was referred to an intensive outpatient program for treatment. When she did not attend, her case was closed by the program provider. On February 17, 2009, the judge issued an order temporarily suspending Sharon's visitation with Robin.

Sharon tested positive for PCP use on March 10, 2009. The judge ordered her to attend a drug treatment program. As a result, Sharon completed an evaluation on March 19, 2009. She was referred back to "My Father's House" and began treatment on March 30, 2009. However, she was discharged from the program in May 2009 for refusing a drug screen and attacking a staff member. Wright, Sharon's counselor, reported that Sharon had admitted to using PCP and had refused to undergo drug tests on May 5, 14, and 15, 2009. Wright described her as paranoid and aggressive. She recommended that Sharon obtain a higher level of substance abuse treatment.

Louis also failed to attend visitation on January 20, 2009, a court proceeding on March 10, 2009, and psychological evaluations on February 24, and March 10, 2009. As a result of his failure to complete an extended evaluation, his unsupervised visitation with Robin was suspended, and he was instead provided with supervised visitation. Louis's visitation was suspended by April 2009 due to his failure to maintain contact with DYFS for a period of months.

On April 21, 2009, both parties appeared in court for a case management conference. Sharon was disruptive and had to be escorted out of the courtroom. The judge allowed Louis to have supervised visitation with Robin on April 23, 2009. The judge further ordered that Louis could resume unsupervised visitation upon completion of his substance abuse and psychological evaluations.

On May 13, 2009, Louis underwent a psychological evaluation with Meryl Udell, Psy.D., a psychologist. Louis told Udell that he began selling crack cocaine, PCP, and heroin at age sixteen, but denied using drugs with the exception of marijuana. He admitted to daily marijuana use from age sixteen to twenty-one. He told Udell that he had a close relationship with Barbara, with whom he resided, and with his fourteen-year-old son, who he saw several times a week. He described an "alright" relationship with his son's mother, although he admitted that he owed her approximately $20,000 in child support.

Udell did not test Louis's cognitive abilities. However, she found Louis to be functioning in the average range of intellectual ability based on his responses during the interview. According to Udell, Louis's responses to other testing indicated that he had a low probability of substance dependence. She also concluded that Louis's responses to the parenting inventory test fell within appropriate limits for four of the five domains measured. Although Louis demonstrated some confusion as to child development, that failure was not a "significant concern [to Udell] as his scores on the other scales were quite good."

Udell diagnosed Louis as suffering from "cannabis abuse in sustained full remission" (Axis I). She recommended that Louis complete drug education classes and all requirements of his probation, and undergo random drug screens. She recommended that Louis, who had been in frequent contact with Sharon while she was using PCP, be required to "demonstrate the ability to remain stable and drug free in the community for at least six months to a year before consideration should be given to returning his daughter to his care."

Udell expressed concern that Louis had left Robin with Sharon, knowing that Sharon "was aggressive and unstable." She found that it would take time for Louis, who had no history of parenting Robin, to build a relationship with her. In the interim, she recommended that Robin remain in a stable placement, but that Louis should be provided with supervised visitation.

Sharon tested positive for PCP during a case management conference on May 19, 2009. On June 1, 2009, Sharon refused to submit to a court-ordered hair follicle test. On June 8, 2009, Sharon entered a new drug treatment program at South Jersey Behavioral Health (SJBH). She tested positive for PCP use on June 9, 2009. A counselor at SJBH described Sharon as "very challenging" and "at times uncooperative."

In May 2009, Louis asked whether his supervised visits with Robin could be rescheduled to take place after he finished work at 5:00 p.m. Williams responded that DYFS did not supervise visitation after 5:00 p.m., but agreed to inquire whether Jane would agree to do so. Williams contacted Jane on May 29, 2009. She told Williams that she would not feel comfortable supervising the visits. She also alleged that Louis was not working, stating that she often saw him hanging out on the street during the day.

On June 3, 2009, Louis told Williams that he worked for a moving company, but would not tell her the name of the company. Williams offered DYFS supervision of his visits from 4:30 p.m. to 5:30 p.m., or during his lunch hour. He ...

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