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New Jersey Division of Youth and Family Services v. T.W

October 14, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-0068-08.

Per curiam.



Submitted September 21, 2011

Before Judges Lihotz and St. John.

In this matter, we are asked to examine the propriety of a Family Part hearing conducted without benefit of testimonial evidence to determine the appropriate permanency plan for a child in the custody of plaintiff the New Jersey Division of Youth and Family Services (the Division). Defendant T.W., the child's biological mother, appeals from the permanency order, entered in a Title Nine proceeding, N.J.S.A. 9:6-1 to -8.73, which subsequently has been dismissed.*fn1 The Division relied upon the case summary certification, prepared by its assigned caseworker, to support a proposed modification of its goal for the child's care. T.W. asserts she was denied the opportunity to be heard and her appointed counsel was ineffective during the Title Nine proceedings. We are not persuaded by the arguments presented. Moreover, the issues raised are moot, warranting dismissal.

These facts are taken from the record of the dismissed Title Nine proceeding. The Division first became involved with T.W. in 1999, when her oldest child, T.Y., tested positive for cocaine at birth. T.Y. was placed in the custody of his maternal great-grandmother. In 2002, custody of T.W.'s second child, E.S., was transferred to his biological father. In 2004, T.W.'s third child, R.S., was removed from her care after R.S. tested positive for cocaine at birth. The child was placed in the custody of her maternal great-grandmother, subject to a kinship legal guardianship order. P.W., the child who is the focus of these proceedings, was born at home on December 15, 2007. Immediately thereafter, P.W. suffered an accident and was taken to a hospital for treatment. Diagnostic tests revealed he tested positive for cocaine. The Division issued a hospital hold to prevent P.W.'s release to T.W., and filed a complaint seeking his care, custody and supervision, pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12.

During the initial hearing, T.W. assented to the Division's request for custody of P.W., acknowledging her illicit drug dependence and need for admittance to an in-patient substance abuse facility.

In pursuit of the reunification goal of P.W. with his mother, the Division aided T.W.'s admission to Seabrook's in-patient drug rehabilitation treatment program. During a fact-finding hearing, T.W. stipulated she used cocaine while pregnant and failed to secure pre-natal medical care, exposing P.W. to risk of harm. T.W. was afforded supervised visitation rights and the Division was authorized to extend visitation periods, upon receipt of Seabrook's recommendation, to achieve reunification.

Four months after T.W. commenced treatment, Seabrook recommended P.W. join her. T.W. continued her abstinence, progressed in the program, attended counseling and drug treatment, completed parenting skills training and fully cared for her son. T.W. was discharged from Seabrook on February 19, 2009 and advanced to intensive out-patient treatment. T.W. obtained an apartment for herself and P.W. However, by April 2009, T.W. refused to continue her after-care and relapsed. The Division removed P.W. for a second time, returning him to foster care.

The Division amended its complaint to include the additional facts surrounding P.W.'s risk of harm and secured an order from the Family Part placing the child in the Division's care, custody and supervision. T.W. failed to attend the hearing and missed subsequent court dates when the matter was reviewed. Moreover, she was not compliant with the Division's requests for evaluation and treatment.

Thereafter, realizing her need for substance abuse treatment, T.W. enrolled in a different in-patient rehabilitation facility and completed its program. She progressed to the next phase by enrolling in a follow-up care program which allowed P.W. to reside with her. Notwithstanding the Law Guardian's objection, the court ordered reunification to proceed when authorized by the program.

T.W. was discharged from the program on March 20, 2010, subject to her compliance with after-care treatment. She was admitted to an after-care program, attended for ten days, then quit and resumed using cocaine. In May 2010, P.W. was removed from T.W.'s care, for the third time in less than thirty months, and placed with his former resource family.

T.W. absented herself from subsequent court hearings, declined to attend scheduled substance abuse evaluations, failed to appear for a psychiatric evaluation, tested positive during one urine screen and, thereafter, refused to cooperate with the Division.

In preparation for a scheduled permanency hearing, Division case worker Shannon Alba compiled a six-page document entitled "Court Report" (report), certified as true. Wendy Fegley, a Division Supervisor, also certified the statements in the report were accurate.

The report contained a summary of the Division's involvement with the family since T.W. completed Seabrook's four-month in-patient treatment and P.W. was placed in her care on July 11, 2009. The report enumerated the Division's reunification efforts, which encompassed substance abuse evaluations; psychological evaluations; paternity testing; bus passes; transportation for random urine screens; random urine screen testing; supervised visitation; psychiatric evaluations; search and assessment of relatives for placement; individual therapy and parenting skills training through the inpatient substance abuse programs; resource placement of minor child with Medicaid and subsidy support; [and] clothing checks for child[.]

Further, the report listed T.W.'s series of treatments, her program achievements, facts evincing her relapses such as positive and missed urine screenings, unattended evaluations and aborted treatment attendance. Finally, the report recited the Division's recommendation for a change in its goal to find a permanent home for P.W., stating it intended to terminate the current action and file a guardianship complaint, seeking to terminate parental rights followed by foster-parent adoption.

During the permanency hearing, T.W., through counsel, explained her deep desire to regain custody of P.W. Toward that objective, she had enrolled in an intensive out-patient program with Services to Overcome Drug Abuse Among Teenagers (SODAT). She objected to alteration of the goal of reunification and sought to defer any permanency disposition until completion of her treatment. The Law Guardian related the foster parents' desire to become P.W.'s permanent caretakers, which was supported by an expert's bonding evaluation, which was previously delivered to all parties. On behalf of the child, the Law Guardian supported the proposal for guardianship followed by foster-parent adoption.

The court "heard the positions of all the parties" and "reviewed the court reports[,]" determining by "a preponderance of the evidence that the Division's permanent plan for [P.W. was] appropriate and acceptable." Further, the court found despite the Division's reasonable efforts to help reunify the family, T.W.'s continued drug use made it unsafe for P.W. to return home for the foreseeable future. Understanding the length of time P.W. had spent in placement -- fifteen of the thirty months the case had been pending -- the court found termination of parental rights followed by adoption was the most appropriate plan for the child. The Division ...

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