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Division of Youth and Family Services v. C.M

October 11, 2011

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
C.M., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.Q.M., A MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0167-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 13, 2011

Before Judges Messano, Yannotti and Espinosa.

Defendant C.M. appeals from the Family Part's June 8, 2010 order terminating her parental rights to her son, A.Q.M. Defendant raises the following points on appeal:

POINT I - THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE STATUTORY REQUIREMENTS OF N.J.S.A. 30:4C-15 AND 30:4C-15.1 WERE MET POINT I(A) - THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT A.Q.M.'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP UNDER THE FIRST PRONG: THERE WAS NO PHYSICAL HARM CAUSED OR THREATENED TO A.Q.M.

POINT I(B) - THERE WAS INSUFFICIENT EVIDENCE UNDER THE SECOND PRONG TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT C.M. WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING A.Q.M., OR IS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR HIM, AND THE DELAY OR PERMANENT PLACEMENT WILL ADD TO THE HARM POINT I(C) - D.Y.F.S. FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO HELP C.M. CORRECT THE CIRCUMSTANCES THAT LED TO [A.Q.M.'S] REMOVAL, ONLY PROVIDING VISITATION AND EVALUATIONS, AND THE COURT FAILED TO CONSIDER ALTERNATIVES TO TERMINATION OF HER PARENTAL RIGHTS POINT I(D) - THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF C.M.'[S] PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD, UNDER THE FOURTH PRONG, WHERE THE EXPERT EVALUATED THE BIRTH MOTHER WHILE THE FOSTER MOTHER WAS IN THE WAITING ROOM, WHICH WAS KNOWN BY THE CHILD.

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

I.

A.Q.M. was born on October 19, 2006, when defendant was nineteen years old. He is defendant's only child. Co-defendant L.L.B. is A.Q.M.'s father and has maintained little contact with him and defendant since the child's birth.*fn1

The Division of Youth and Family Services' (DYFS or the Division) involvement with defendant began shortly after the birth of A.Q.M. On June 13, 2007, DYFS received information from A.Q.M.'s aunt, C.R., that defendant had left the child "in the family home alone [the previous] night." According to the screening summary, the child was alone from 9 p.m. to 3 a.m. while the "whereabouts" of defendant were "unknown." The report also noted that A.Q.M., who suffered from asthma, had not been given his medication, adequate food or appropriate medical care. DYFS determined that the "allegations of neglect . . . [were] substantiated."

Defendant's cousin, L.L., agreed to take A.Q.M. and defendant into her care and custody, and DYFS began to provide services to the family. Defendant, however, initially did not comply with the Division's request that she attend parenting classes.

On January 29, 2008, DYFS again intervened following reports that defendant was not providing A.Q.M. with food, immunizations, "adequate clothing" and "[was] giving [A.Q.M.] Robitussin for adults." The Division's case worker determined that A.Q.M. had not "been eating at all"; had "trouble breathing"; was not properly clothed or fed; and was left alone "with whomever [wa]s staying with [defendant]." However, DYFS took no further action at that time.

On February 23, the Division responded to a third referral. An anonymous reporter told DYFS that defendant's home was "filthy," with the "sink . . . full of dirty dishes" and an "unsanitary" bathroom. The caller also alleged that A.Q.M. "d[id] not have a crib or bed to sleep in," the home lacked food and the child "wa[s] behind in his immunizations." It was also rumored that defendant was pregnant.

Upon another home visit, the Division's caseworker concluded that although defendant "appear[ed] to have limited functioning, . . . she [was] trying to do good for her son." DYFS advised defendant to apply for Medicaid and referred her for substance abuse counseling after she admitted using marijuana.

On February 27, defendant was psychologically evaluated by Eric Kirschner, Ph.D. Kirschner observed that she "was defensive and guarded" and suffered from "irritability . . . feelings of hopelessness, low self-esteem, and social withdrawal." Defendant admitted that she had attempted suicide and was sexually assaulted as a child. Kirschner concluded that defendant needed continued counseling in order to be an effective parent to A.Q.M. and that "[t]he needs of her child [were] secondary to her own." He further found that:

[Defendant] lacked insight into her significant emotional impairments which have likely served to compromise her judgment and parenting abilities. . . . Without proper treatment, [her] ability to be responsive to her child's needs is questionable and therefore the threat of child endangerment remains prominent. The available clinical data raises serious questions about [defendant's] ability to adequately care for and meet the needs of her young child. Overall, [defendant] displayed numerous psychological impairments and parenting deficits, which likely interfere with her ability to provide an adequate environment for her child.

Kirschner recommended that defendant continue to attend parenting classes and undergo "anger management treatment."

On February 29, when the Division was notified that defendant had missed three parenting skills sessions, its caseworker again visited defendant's home. A.Q.M. still had not received his immunizations, did not have a proper place to sleep, and the home remained unclean. On March 4, the Division filed a verified complaint seeking the emergency removal of A.Q.M. and custody of the child. The request was granted, and A.Q.M. was placed in foster care.

DYFS arranged for supervised visitations between defendant and A.Q.M., but, by May 2008, defendant began to miss these sessions. By September, however, defendant began to avail herself of the services provided. She began to regularly attend parenting classes, and, in December 2008, the provider, Babyland Family Services, informed DYFS that the "case goal" was "[r]eunification," that defendant "care[d] for [her] child, [and] they ha[d] a strong bond." On December 18, defendant had "successfully completed the [parenting] program" and earned positive reviews from the facility's counselors.

In the interim, DYFS continued to assess other members of defendant's family for foster care placement. The Division contacted C.R. as to her "ab[ility] to get a bigger apartment in order to accommodate" A.Q.M.'s placement with her. Defendant's mother, A.R., was also considered by the Division but was ruled out after the discovery of an "active traffic warrant" for A.R.'s husband. Defendant's sister, C.M., who lived in Georgia, was also ruled out due ...


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