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New Jersey Division of Youth and Family Services v. K.A.C. and P.E.C.

December 19, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-61-10.

Per curiam.



Submitted September 28, 2011 -

Before Judges Axelrad, Sapp-Peterson and Ostrer.

These consolidated appeals concern two guardianship matters that were resolved in a single trial. Defendants, K.A.C. and P.E.C., Jr. ("P.E.C."), appeal from the Family Part order, entered by Judge Figarotta, terminating their parental rights to two of their three children, Carla, born July 12, 2003, and Casey, born October 3, 2005,*fn1 and granting guardianship to the Division of Youth and Family Services ("Division"). We affirm.

The evidence presented at the two-day trial conducted in June 2010 was as follows. In addition to the three children K.A.C. and P.E.C. have together, K.A.C. has a fourth child, her oldest child, from another relationship. The Division first became involved with defendants in 1988 based upon reports of unsanitary conditions in their home, and it responded to subsequent referrals ranging from complaints of lack of supervision over the children to a claim that defendants smoked crack and marijuana in the presence of their children. Defendants also were unable to maintain stable living arrangements, losing one apartment and moving into welfare housing when their utilities were shut off for non-payment. Prior to removing the children from their custody, the court placed defendants under the supervision of the Division. The supervision required that defendants attend substance abuse evaluations. Although they initially failed to undergo the evaluation, they attended an evaluation in March 2007 and tested positive for drugs. They were directed to participate in outpatient treatment, but they failed to do so and continued to test positive for drugs throughout 2007.

The court entered an order awarding the Division custody of Carla and Casey in early 2008, and the girls were placed into a foster home on February 14, 2008, where they continued to remain at the time of trial. Between March and July 2008, defendants attended drug treatment sessions. By June, P.E.C. tested negative and was deemed drug free and without a marijuana dependency. Defendants underwent a psychological evaluation in September 2008, during which they both acknowledged they used marijuana often until their daughters were removed from their custody. P.E.C. was diagnosed as suffering from polysubstance abuse and personality disorder, not otherwise specified ("NOS"), with narcissistic and antisocial features. K.A.C. was also diagnosed with personality disorder, NOS, as well as suffering from substance abuse and a substance-induced anxiety disorder. Notwithstanding their attendance at drug treatment programs and P.E.C.'s negative drug screens during the summer of 2008, both parents tested positive for marijuana in early February 2009 and, on multiple occasions, failed to attend the drug treatment sessions. After the court approved the Division's permanency plan of terminating their parental rights, defendants resumed regular attendance at the drug treatment programs throughout the summer of 2009, but they continued to test positive for narcotics.

After the Division placed Carla and Casey in a foster home, defendants attended weekly supervised visitation with their daughters until those visits were suspended for one month when defendants tested positive for narcotics. They resumed visitation with the girls in August 2009.

Dr. Karen Wells, a psychologist, conducted a psychological evaluation of the parents and performed bonding evaluations of the children with their parents and with the foster family with whom the children had been living for more than two years at the time of trial. In these evaluations, defendants acknowledged their long history of abusing drugs and neglect of their children. Dr. Wells opined that K.A.C., however, "minimized the difficulties she had experienced in [the] parenting of her children or failed to accurately recall her more than twenty[-]year history of involvement with the Division . . . ." Dr. Wells, who testified at the termination hearing, expressed her concerns about defendants' ability to provide the necessary structure and care for their children. She doubted whether they "would ensure the children's educational needs" should they regain custody of the girls.

On the other hand, based upon the bonding evaluation she conducted between the girls and their foster parents, Dr. Wells expressed the view that "[t]he girls look to [their foster parents] as their psychological parents, specifically persons who provide their basic needs (food, shelter, and clothing) as well as nurturance, care, stability, and a sense of security and belonging."

K.A.C. testified that she was unemployed, had never completed high school, and that P.E.C. was her sole source of income through his Social Security. They also received food stamps and public assistance for utility payments. Although she claimed that she stopped using marijuana in April 2009, she nonetheless tested positive for marijuana in July 2009. In P.E.C.'s testimony, he admitted he continued to use drugs after his daughters were placed in foster care.

At the conclusion of the trial, Judge Figarotta issued an oral opinion in which he concluded the Division had satisfied, by clear and convincing evidence, the requisite statutory prongs for determining whether termination was in the ...

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