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New Jersey Division of Youth and Family Services v. B.E

July 14, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
B.E., DEFENDANT-APPELLANT, AND M.M., DEFENDANT. IN THE MATTER OF THE GUARDIANSHIP OF F.K.E., AND A.S.K.E., MINORS.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0210-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 7, 2011

Before Judges Graves, Messano and Waugh.

Defendant B.E. appeals the termination of his parental rights to two of his daughters, F.K.E. and A.S.K.E. He raises the following points for our consideration:

POINT I

THE STATE FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE THE FATHER'S PARENTAL RIGHTS IN ORDER TO PROTECT THE CHILDREN'S BEST INTERESTS.

POINT II

THE TRIAL COURT ERRED IN CONCLUDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TERMINATION OF THE FATHER'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

POINT III

DYFS FAILED TO PROVIDE REASONABLE EFFORTS TO REUNIFY THE FAMILY BY NOT OFFERING FAMILY THERAPY OR SIGNIFICANT HOUSING ASSISTANCE.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

The Division of Youth and Family Services (DYFS or the Division) filed a guardianship complaint and order to show cause (OTSC) on March 20, 2008. At the time, DYFS sought care, custody and supervision of four children: F.K.E., born October 12, 1996 (Franny); A.A.K.E., born May 2, 1998 (Alice); S.M.K.E., born April 13, 2000 (Sophia); and A.S.K.E., born August 14, 2003 (Amy).*fn1 Defendant, M.M. (Mary), is the mother of all four children; defendant is the biological father of Franny and Amy; and the father of Alice and Sophia was never located and did not participate at trial. Mary was also the mother of two other older children who were already in the care and custody of their aunt and were not subjects of the guardianship complaint. Mary has not appealed from the order terminating her parental rights to the four children.

DYFS's contact with the family began on March 4, 1993, after one of the older children sustained a third-degree burn on his right thigh while sleeping on a mattress placed near a radiator. The Division investigated and determined the charge of neglect was unsubstantiated. On October 28, 1997, DYFS received another referral after one-year-old Franny burned her hand on exposed pipes in the family's home. Again, the charge of neglect was unsubstantiated.

On May 4, 1998, DYFS was notified by the hospital that Mary had given birth to Alice in her home two days earlier, and that both mother and child tested positive for cocaine. Mary's claims that she had attended prenatal care appointments at University Hospital could not be confirmed. DYFS substantiated neglect against Mary and obtained custody of Alice and supervision of Franny and her two older siblings.

DYFS offered Mary and defendant a variety of services at that time, including an outpatient intensive drug treatment program for Mary and assistance in securing a Section 8 housing voucher. Mary successfully completed her drug treatment program, the family was reunited on October 26, 1998, and DYFS continued to monitor the family in the years that followed.

DYFS learned that Sophia was born on April 13, 2000, had low birth weight and that she and Mary had tested positive for cocaine. DYFS again substantiated neglect against Mary and obtained custody of all the children in May 2000. It is unclear from the record what specific services, if any, were provided at this time, but the family was reunited again on January 26, 2001.

During the ensuing five years, DYFS received seven additional reports of neglect, many drug-related, but was unable to substantiate the allegations. The Division continued to offer defendant and Mary a variety of services, including referrals for drug assessments, furniture for the children, and funds to pay for clothing, food and transportation. Defendant and Mary sometimes failed to attend their scheduled assessments.

On April 15, 2006, DYFS received another referral alleging that Mary had been arrested and that the children had been left home alone for several days. Police went to the home and found five of the children, then ages thirteen, nine, seven, six and two, alone. They claimed that defendant had gone to work and that their oldest sister, then fifteen, had left to watch a movie. When interviewed later, defendant acknowledged going to work and leaving his children alone. Defendant also told the caseworker, Madeline Boughton, that Mary frequently sold the family's food and food stamps to support her drug habit, and that she had been recently incarcerated.

Defendant also said that he would rather see his children in foster-care than living with their mother, and claimed that he only maintained contact with Mary because she received housing assistance. DYFS substantiated an allegation of neglect against defendant for his failure to supervise the children, but did not seek removal.

On May 1, 2006, defendant signed a case plan agreeing to provide a "[s]afe and stable environment" for the children. DYFS also provided defendant with a variety of services, including an in-home parent aide, referrals for food and child care assistance, and drug assessments. DYFS gave defendant $900 to purchase food and clothing for the children, and directed him to save itemized receipts for the expenditures. However, when later asked to provide documentation, defendant was only able to produce a few fast-food receipts totaling less than $100.

On July 12, 2006, Mary pled guilty to two counts of possession of a controlled dangerous substance with intent to distribute, and was sentenced to three years probation.

In October 2006, defendant told Boughton that Mary was "'back on those drugs,'" but that she would probably not cooperate with drug treatment. Defendant signed another case plan on November 16, agreeing to cooperate with an in-home parent aide, submit to a psychological evaluation and not leave the children alone with Mary. The plan provided that DYFS would seek removal of the children if defendant failed to comply with these conditions. DYFS also referred both Mary and defendant for additional assessments; however, defendant's attendance was sporadic.

On December 7, 2006, the New Jersey Department of Community Affairs conducted a hearing to review allegations that Mary had failed to provide accurate information regarding the family's income, specifically with regard to defendant's earnings, and had engaged in drug-related criminal activity. Boughton accompanied defendants to the hearing that resulted in termination of their Section 8 assistance. Eviction was scheduled for January 31, 2007, and Boughton was advised that the family was ineligible for further assistance for a five-year period.

On January 24, 2007, Boughton visited the family and found all six children home alone. Defendant claimed that Mary was supervising the children while he ran errands. The following day, Boughton again found the children alone. When Boughton returned the next day to drive defendant to a random urine screening, she once again found the children alone without any adult supervision.

On January 30, 2007, DYFS filed an OTSC and verified complaint seeking custody of the six children alleging that defendant and Mary had failed to comply with DYFS services and that the family's eviction was imminent. The children were removed on an emergent basis with the two oldest children being placed with their aunt, and the four younger children being placed in two foster homes.

On February 22, 2007, the return date of the order to show cause, the court ordered Mary and defendant to submit to drug screens immediately following the hearing. Defendant tested positive for cocaine and heroin, and Mary tested positive for cocaine. Defendant told the drug screener that he was taking medication prescribed by his dentist, but could not produce proof of the alleged prescription. On April 4, 2007, the court conducted a fact-finding hearing and concluded that defendant and Mary had neglected their children by failing to provide adequate shelter, by engaging in criminal activity, by continuing to use illicit drugs and by leaving their children home alone.

Once removed, the children underwent comprehensive evaluations that included mental health evaluations. According to one report, Franny, then ten years old, told her physician that she saw her mother use crack and cocaine, and that "her father would get angry at her mother because her mother would stay out late using drugs." Franny recounted that she was "'scared to death'" during a fight between defendant and Mary, who was intoxicated at the time.

DYFS referred defendant and Mary for a myriad of services, which included psychological and substance abuse assessments, individual counseling, substance abuse treatment and parenting skills classes. DYFS provided supervised visitation and funds for transportation. However, defendant's and Mary's cooperation and attendance were irregular.

For example, Mary failed to report to the first three intake appointments for her outpatient substance abuse counseling and thereafter claimed the program interfered with her recently obtained employment. However, Mary never provided verification of employment and her treatment was terminated on November 7, 2007, because of "non-compliance with the rules and regulations of [the] program." Because of her inability to document that she was substance-free, Mary could not attend a separate parenting class.

Defendant missed several appointments before he finally attended a substance abuse assessment on July 27, 2007. The counselor referred defendant to an extended drug assessment program, but defendant did not comply. Although defendant began taking parenting skills classes on August 22, 2007, he did not actually complete the program until 2009.

After missing several appointments, on September 10, 2007, defendant met with Dr. Albert R. Griffith for a psychological evaluation. Defendant told Griffith that he tried marijuana and drinking as a teen, but did not use these substances as an adult because they were "inconsistent with his religious beliefs." ...


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