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New Jersey Division of Youth v. S.D.M

November 4, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-223-09.

Per curiam.



Submitted September 21, 2011

Before Judges Graves, Harris and Koblitz.

Defendant S.D.M. appeals from a June 8, 2010, Family Part judgment of guardianship granting the request of the Division of Youth and Family Services (DYFS or the Division) to terminate her parental rights to the youngest of her four children, S.S.M., (fictitiously, Samuel), born on April 9, 2008.*fn1 S.D.M. has been involved with the Division since at least 2001. Throughout the years, she has struggled with mental illness, homelessness and substance abuse. As a result, none of her four children are currently under her care. Her two oldest children, one of whom was the subject of a kinship legal guardianship, are now emancipated. S.D.M.'s parental rights to her third child were terminated on November 8, 2006. Samuel never lived with S.D.M. He remained hospitalized for more than three months due to his premature birth and continues to have special needs. We conclude the proofs presented by the Division amply support the judge's conclusion that termination of S.D.M.'s parental rights is in Samuel's best interests. We therefore affirm.


During S.D.M.'s pregnancy with Samuel, she tested positive for amphetamines and cocaine on multiple occasions. At Samuel's birth, she tested positive for amphetamines and opiates. S.D.M. acknowledged using heroin three days before the birth, but explained, "I tested positive for crystal meth at [Samuel's] birth, but I never used it. The doctor sa[id] it may have been mixed in with the heroin."

Despite in utero exposure to drugs, Samuel tested negative for illegal substances at birth. He was born prematurely at approximately twenty-eight weeks of gestational age and weighed only two pounds and six ounces. Samuel remained hospitalized after his birth due to severe malnutrition, and he also developed sepsis, meningitis and respiratory issues.

Based on S.D.M.'s history with the Division, her name had been placed on the "At-Risk List with instructions to alert DYFS when [she] delivered." The day after Samuel was born, a Division worker visited S.D.M. at the hospital. S.D.M. informed the worker that she had been using heroin for nineteen to twenty years; was diagnosed as bi-polar and schizophrenic; and had been living at the House of Hope, a homeless shelter in Newark, for approximately one year. S.D.M. signed a case plan that required her to attend family team meetings, as well as substance abuse and psychological evaluations.

Nearly two weeks later, on April 22, 2008, the Division obtained custody of Samuel pursuant to an order to show cause (OTSC). The removal was based on S.D.M.'s extensive substance abuse history and homelessness.

After more than three months in the hospital, Samuel was discharged on July 24, 2008. Because the Division classified him as "medically fragile,"*fn2 he was placed with a Special Home Service Provider (SHSP).

That same month, S.D.M. tested positive for cocaine and heroin. In October 2008, S.D.M. enrolled in the Women In Strength Empowered program at Integrity House. She was scheduled to attend classes five days a week in the areas of parenting, relapse prevention, life skills, domestic violence, health education, anger management, co-occurring disorders, as well as drug and alcohol addiction. The program also provided weekly individual counseling sessions. Despite being given a bus pass by the Division, S.D.M. never returned to Integrity House after her intake appointment and was discharged on November 5, 2008. S.D.M. also missed three scheduled substance abuse assessments and four psychological evaluations.

In November 2008, Samuel was determined to be eligible for Early Intervention Services (EIS) based on at least a 25% delay in the developmental areas of communications and motor skills. His movements were deemed very slow; he had weakness throughout his body; and he used his right hand "in a tight, fisted manner."*fn3 EIS services commenced in March 2009, providing Samuel with occupational and physical therapy.

Samuel remained in the care of the SHSP until December 2008. During that period, S.D.M. was allowed one supervised visit per week at Babyland Family Services, Inc., with the Division providing her transportation to and from these visits. Carolyn Cammock, S.D.M.'s Division caseworker since before Samuel's birth, acknowledged that S.D.M. visited consistently at that time.

In early December 2008, Samuel was transferred from the SHSP home to Hudson Cradle Infant Home (Hudson Cradle), with an admitting diagnosis of failure to thrive.*fn4 While Samuel was at Hudson Cradle, S.D.M. was offered three one-hour visits per week, with the Division providing both bus passes and bus tickets. S.D.M. visited him only two times a month from January through March 2009, and three times in April 2009. She did not visit her son again until September 3, 2009. Hudson Cradle staff indicated that "[p]er mother, the reason why she was not visiting with [Samuel] [was] because she was sick and hospitalize[d]."

On March 6, 2009, based on the prior termination of S.D.M.'s parental rights to her third child, the court granted the Division's motion for an exception to the requirement of reasonable efforts to reunify S.D.M. with Samuel. See N.J.S.A. 30:4C-11.3(c) (stating that reasonable efforts need not be provided when "[t]he rights of the parent to another of the parent's children have been involuntarily terminated"). The court also entered a permanency order approving the Division's plan to terminate parental rights and pursue adoption. The Division filed an OTSC and complaint for guardianship on June 12, 2009, and an amended complaint on December 7, 2009.

Despite the "no reasonable efforts" order, the Division continued to provide S.D.M. with services. S.D.M. was referred to a psychiatric evaluation with Alexander Iofin, M.D., on July 7, 2009. S.D.M. informed Dr. Iofin that heroin was "her drug of choice" and she used it "less than one week before the current evaluation." According to Dr. Iofin's report, S.D.M. also had a history of mental illness, "in the moderate to severe realm," which resulted in two hospitalizations. She was hospitalized most recently in 2006 because of a suicide attempt. Dr. Iofin found that S.D.M. "presented with [a] confused thinking pattern . . . [with] poorly developed cognitive mastery and coping skills."

S.D.M. had a poor relationship with her own mother, who beat her with an extension cord. S.D.M. dated the start of her drug use to age eight, when she began smoking marijuana. Dr. Iofin concluded that S.D.M. was "clearly a MICA [mentally ill chemical abuser] patient. . . . The prognosis for her to be considered as a minimally adequate parent for [Samuel] is extremely poor now ...

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