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New Jersey Division of Youth and Family Services v. M.S

July 13, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-35-09.

Per curiam.



Submitted May 25, 2011 - Decided Before Judges Fuentes, Ashrafi and Nugent.

(Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

Defendant-mother M.S. appeals from the final judgment of the Chancery Division, Family Part, terminating her parental rights to a son, now nine years old, and a daughter, now five years old. We affirm.*fn1

Defendant has been a habitual abuser of illegal drugs. She has admitted using marijuana, cocaine, ecstasy, benzodiazepines, heroin, and crack cocaine. She has made no effort to address her drug abuse despite being the single mother of five children. The harm she has caused by neglecting her children's needs has been physically manifested in at least two of her children and noted by school personnel and others.

In November 2007, the Division of Youth and Family Services (DYFS) removed four children from defendant's apartment, the two who are the subject of this appeal and two teenage sons who were placed in the custody of their father in New York. Defendant also has a twenty-year-old son who lived with his girlfriend and two-year-old child in a separately-locked room attached to defendant's apartment.

DYFS had contacts with the family since 1993, receiving a total of twelve reports in the ensuing years, some of which were substantiated and some not. In May 2007, DYFS received a referral from the father of the then five-year-old boy complaining that he looked undernourished and had marks on his body. Abuse and neglect were not substantiated at that time.

In September 2007, an anonymous caller notified DYFS that defendant had gone out at night to buy marijuana and had left the children sleeping and alone in her apartment. She was arrested that night and did not come home until late the next morning. The two older boys went to school in the morning not even realizing that their mother was not home. The two younger children, then five years old and nineteen months old, were left alone. The DYFS investigation that followed found defendant continuing her drug use and failing to provide adequate care for the children.

DYFS attempted to enroll defendant in drug treatment programs. She rejected all treatment, claiming that in-patient rehabilitation programs of several months duration were too long, and she might lose her federally-subsidized full rent assistance if she stayed away from her apartment. She had no similar excuse for failing to attend the out-patient programs that DYFS made available for her; she simply did not go. She also missed many appointments DYFS scheduled for drug abuse evaluation. When detoxification was recommended, she said she was not ready for it.

Defendant also gave excuses for failing to enroll the five-year-old boy in kindergarten; failing to take him to a dentist for several years to the point where his teeth were in such poor condition that he could not chew food; failing to attend to the boy's delayed development in speech and ambulation, subsequently diagnosed as a neurological impairment; repeatedly missing appointments with an optometrist for one of the teenage boys, who was unable to read the blackboard at school because his eyesight was poor and his glasses had been broken for several months; and allowing the teenage boy to miss many days of school.

Defendant missed most of the visitations DYFS arranged for her with the two younger children. In March 2008, the court suspended the visitations because she repeatedly tested positive for drug use, showed other signs of being under the influence of drugs, and refused to cooperate for drug treatment. Defendant has not seen the children since February 15, 2008. The children are in the care of foster parents and have improved noticeably since they were removed from defendant's home. On one occasionsoon after his removal, the boy cried when he thought he was being returned to defendant's apartment.

Defendant repeatedly failed to attend court proceedings adjudicating her parental rights. The court patiently accommodated her disregard, vacating her default and adjourning proceedings to allow her to be heard. The termination of parental rights trial began on July 9, 2009, and then continued sporadically over eight court dates because defendant missed court dates. The trial was finally completed on May 5, 2010. Defendant's testimony was anticipated a day earlier, but again, she did not come to court. Instead, she spoke to her attorney on the telephone and requested to testify by ...

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