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New Jersey Division of Youth and Family Services v. S.E.B. and K.A.T.

December 14, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FG-04-96-10.

Per curiam.



Submitted November 15, 2011

Before Judges Payne, Reisner and Hayden.

In these consolidated appeals, S.E.B., the mother, and K.A.T., Jr., the father of three children, X.S.B. (Girl 4),*fn1

X.Z.T. (Girl 5) and K.K.T. (Boy 2), appeal from the December 17, 2010 order of the court terminating the mother's and father's parental rights to the three children and granting the Division of Youth and Family Services (DYFS) guardianship over them. Having reviewed the testimony and exhibits in the matter, as well as the parties' legal arguments, we affirm.


The mother gave birth to Girl 4 in November 2008. The baby weighed seven pounds eight ounces at birth, was healthy, and showed no exposure to drugs. The mother was twenty-five years of age at the time of the child's birth. The child's father was incarcerated on the day of his daughter's birth as the result of an episode of domestic violence with his then-girlfriend.

Previously, the mother had given birth to a boy and three girls who survived and one child who was born prematurely and died at birth. None of the four living children was in the mother's custody when Girl 4 was born. The oldest child, a boy, had lived with his paternal grandfather since birth and was never under the custody and supervision of DYFS. The three younger girls were abandoned by the mother from February to December 2006. In December, the mother returned to her children, but shortly thereafter she attempted to commit suicide by ingesting aspirin. She was psychiatrically hospitalized for five days. Upon release, she and the children lived in a shelter until the mother was discharged on January 29, 2007 for missing curfew.

On February 7, 2007, DYFS removed the three girls from their mother's care on an emergent basis as the result of the mother's noncompliance with her mental health treatment and homelessness. A Title 9 action was instituted on February 9, 2007, and on December 7, 2007, neglect by the mother was substantiated, the court having determined that she placed her children at risk of harm as the result of the mother's homelessness and her noncompliance with the services and psychiatric treatment offered to her. The three girls remained in the custody of a woman who was initially believed to be their paternal grandmother. Although it was later determined that only one of the girls was related to her, she was awarded custody of all three by the court. The father of the other two girls, who are twins, is undisclosed.

Because of the mother's history with DYFS, a hospital hold was placed on Girl 4 on November 11, 2008. On November 12, 2008, the court ordered the baby to be placed in protective custody pursuant to N.J.S.A. 9:6-8.16. On November 13, 2008, DYFS filed a verified complaint and order to show cause seeking legal custody of the baby because of the mother's history with DYFS, the litigation concerning the older girls, the mother's failure to comply with court-ordered services, and a positive marijuana test in July 2008. Additionally, on November 13, 2008, DYFS was awarded temporary custody of Girl 4, upon the court's determination that the mother had tested positive for marijuana in court that day, had three other children in foster care, and had untreated problems with substance abuse and mental health. The court ordered that the mother be psychologically evaluated, that psychiatric therapy be offered and that a drug screen be performed.

Four days after her birth, Girl 4 was transferred to foster care, where she has remained with her foster mother, who runs a daycare center from the home. Girl 4 is developmentally delayed, but is receiving services. The foster mother previously adopted a daughter, who was four at the time of trial, and a son, who was three. She also has four other children who were either in college or working. She wishes to adopt Girl 4.

The mother was evaluated on December 4, 2008 by Roger T. Barr, Ed.D. During that evaluation the mother admitted to use of marijuana two to three times a week since the age of fourteen. She stated that she had experienced a very bad childhood. Both parents abused drugs, and her father physically abused her mother. She was raised by her great-grandmother from the age of five through thirteen, and at age fourteen her mother disappeared for eight years. After being housed with her sister at a facility in Clarksboro, the court compelled her father to accept custody, but no affection between the father and the girls existed. The mother reported that she had never formed a personal relationship with the fathers of her older children. The father of the oldest was incarcerated for statutory rape when the child was two months of age and the father of the other children was incarcerated for attempted murder. Following an interview and testing, Dr. Barr concluded that the mother fails to appreciate the continued influence of potent risk factors revealed during her Psychological Evaluation and dramatically impacting the parenting sphere. These risk factors include: Residential instability, lack of consistent emotional supports, failed male-female relationships, a childhood characterized by abandonment, abuse, and neglect, and unresolved psychological issues. This constellation of risk factors contraindicates reunification with [Girl 4] and recommends all visits occur under supervision.

Dr. Barr recommended a psychiatric evaluation to assess the need for psychotropic medication, continued drug treatment, individual and couples counseling, and the provision of stable housing and emotional support.

On December 10, 2008, the court conducted a hearing on the order to show cause, at which both the mother and father appeared. Following the hearing, the court ordered that Girl 4 remain in the custody of DYFS, that the mother submit to a psychological evaluation (which, in fact, had taken place), that she obtain substance abuse treatment, and that she receive parenting skills training as recommended by DYFS. Weekly supervised visitation was ordered. Additionally, DYFS was ordered to file an amended complaint adding the father as a parent of Girl 4. The amended complaint was filed on the following day.

The mother was to commence treatment at the Maryville Outpatient Center for drug counseling on December 2, 2008. However, on December 10, 2008, she became homeless and, as a result, she did not complete the Maryville program.

The court held a fact-finding hearing in the Title 9 action on March 5, 2009. At that time, both the mother and father tested positive for marijuana and PCP. Following the hearing, the court determined by a preponderance of the evidence that both parents had abused or neglected Girl 4. The mother was found to be homeless and to have failed to cooperate with the Division by completing substance abuse counseling or engaging in individual therapy. The father was found to lack stable housing and to have repeatedly tested positive for marijuana. The court ordered that both parents attend substance abuse treatment, counseling and parenting classes.

At a compliance review hearing, conducted on May 13, 2009, the mother was ordered to undergo a psychiatric evaluation, counseling at PC Counseling, and to obtain substance abuse treatment at Maryville outpatient center. The father was ordered to obtain substance abuse treatment at the Sikora treatment center, having completed a thirty-day in-patient drug treatment program at Turning Point on May 11, 2009, and to obtain counseling as recommended by DYFS. Both were ordered to obtain parenting skills training.

On June 22, 2009, the mother was incarcerated after attacking with a knife the woman who was custodian of her three older girls. She was indicted on multiple charges and pled guilty to third-degree utterance of threats to commit violence in violation of N.J.S.A. 2C:12-3a. On August 6, 2010, she was sentenced to three years of probation. At the time, it was noted that the mother had two juvenile adjudications and four municipal court convictions. This was her first indictable offense.

A DFYS report of July 21, 2009, completed upon the departure of the caseworker supervising the case, noted that the mother had "a long history of instability. She has mental health issues. [She] usually starts treatment but then does not follow through. She is currently homeless, staying from house to house."

On August 2, 2009, the mother delivered Girl 5 prematurely into the toilet at the gestational age of twenty-five weeks. However, the circumstances of the child's birth, which apparently are not uncommon, were not deemed to constitute neglect. A fraternal twin boy, Boy 2, was delivered at the hospital six days later. Both babies were placed in neonatal intensive care. No prenatal care had been sought. The mother tested positive for marijuana at the time of Girl 5's birth.

Boy 2 remained hospitalized until November 16, 2009; Girl 5 remained hospitalized until December 22, 2009. Both were placed in a specialized foster home because of their medically fragile status. In July 2010, the twins were moved to the home of a new foster family while their prior foster parents were on vacation. They have remained with the new foster parents, who seek to adopt them.

On September 21, 2009, DYFS filed a verified complaint and order to show cause seeking custody of Girl 5 and Boy 2 on the grounds of the parents' inability to maintain housing or care for the children and of the children's medically fragile ...

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