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New Jersey Division of Youth and Family Services v. D.D

December 30, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FG-06-34-10.

Per curiam.



Submitted December 7, 2011

Before Judges Lihotz and Waugh.

We are requested to review challenges to a Family Part judgment of guardianship terminating the parental rights of defendant D.D., the mother of J.L.H., Jr., born in September 2007, and J.X.H., born in December 2008, who have been in the custody of the Division of Youth and Family Services (the Division) since birth. The judgment also terminated the parental rights of the children's father, who has not appealed that determination. Therefore, we confine our discussion to the facts and circumstances involving D.D.

On appeal, D.D. argues the trial court's findings concluding that the Division satisfied each prong of the best interests test, N.J.S.A. 30:4C-15.1a, were unsupported by clear and convincing evidence. We disagree and affirm.

These are the facts upon which the trial judge based his findings and conclusions. The Division began its involvement with D.D. in April 1996. D.D. suffers from substance abuse and mental illness. In addition to J.L.H., Jr. and J.X.H., D.D. has five children, none of whom are in her care and custody. Her oldest child was placed with a relative pursuant to judgment of kinship legal guardianship, two children live with their natural fathers, and two others were adopted following the Division's award of guardianship. Throughout D.D.'s first five pregnancies, the Division extended services in an effort to address D.D.'s and the children's needs.

The Division received a referral from the hospital prior to J.L.H., Jr.'s birth. On September 5, 2007, D.D. was admitted to Our Lady of Lourdes Hospital in Camden after her membrane ruptured. Tests reflected she had been using opiates. Against medical advice, likely fearing the Division would intervene, D.D. left the hospital. Hospital staff contacted the Division, which unsuccessfully attempted to locate D.D. to urge her return to the hospital to prevent injury to herself and her yet unborn child.

Several days later, J.L.H., Jr. was born at a different hospital. He was premature, completing only thirty weeks gestation, and tested positive for cocaine shortly after his birth. The baby weighed three pounds and suffered a myriad of problems including, but not limited to: respiratory distress requiring connection to a ventilator; intrauterine drug exposure to cocaine; anemia; a prolapsed foot; and other complications resulting from the prolonged ruptured membrane. The child remained hospitalized for fifty-six days.

The Division sought and was awarded custody, care and supervision of J.L.H., Jr. Upon his discharge from the hospital, he was placed in a special medical foster home. Since birth, J.L.H., Jr. has remained in foster care.

The Division later filed a guardianship complaint seeking to terminate D.D.'s parental rights regarding J.L.H., Jr. D.D. was again pregnant and began complying with the Division's requests to engage services.

The Division was contacted when J.X.H. was born at Jefferson Hospital in Philadelphia, Pennsylvania. D.D. traveled to Philadelphia hoping to avoid the Division's involvement. When interviewed, she explained she was diagnosed with bipolar disorder. She received pre-natal care. Other than the need to surgically remove a cyst, the child was healthy. On January 6, 2009, the Division filed an emergent application under Title Nine seeking custody of J.X.H. because of D.D.'s failure to comply with substance abuse treatment programs and her mental instability. The court granted the request.

At the urging of D.D.'s cousin, I.M., the Division placed J.X.H. in her care, but later removed the child at I.M.'s request. He was placed with a resource family when no other relatives were identified by D.D. as potential caregivers. Ultimately J.L.H., Jr. was placed with the same resource family, which has stated an intention to adopt the brothers.

The Division worked with D.D. in an effort to achieve reunification with her sons. When her efforts to address her issues were not consistently maintained, the Division closed the Title Nine action on April 29, 2010, and filed a complaint for guardianship of both J.L.H., Jr. and J.X.H.

In the course of the litigation, the Division provided D.D. with services including substance abuse treatment, visitation, counseling, and parenting classes. D.D. was referred to four different substance abuse programs, none of which she completed. D.D. was referred to Dr. Scott Schafer for individual therapy sessions, but was discharged when she failed to attend. Subsequently, the Division arranged for therapy with Jason Walker through the Child Family Resource Center, which also discharged her for absenteeism. D.D. successfully graduated from a parenting skills course and participated in some visits at the Division's offices and, later, in-home visits supervised by Community Treatment Solutions. Nevertheless, at trial it was disclosed that D.D. last visited her children in October or November 2010.

In support of its request for guardianship, the Division presented the testimony of James Loving, Ph.D., an expert in the fields of clinical and forensic psychology. Dr. Loving performed a psychological evaluation of D.D., a bonding evaluation between J.L.H., Jr. and D.D. and a bonding evaluation between J.X.H., D.D. and his foster mother.

Dr. Loving conducted the psychological examination over three dates: January 12, 27, and June 22, 2010. In his evaluation of D.D., Dr. Loving utilized psychological testing, including a personality assessment inventory, the Rorschach Inkblot test, a Child Abuse Potential Inventory, the Beck Depression Inventory, and the Beck Anxiety Inventory. Dr. Loving also conducted a clinical interview and reviewed numerous documents regarding D.D.'s medical and psychological treatment history.

In his trial testimony, Dr. Loving outlined three areas of risk D.D. posed as a caretaker to her children: (1) her history of psychosis and mood related problems stemming from her bipolar disorder; (2) a borderline personality disorder; and (3) exposure to domestic violence. The first risk factor could impair "day-to-day functioning . . . including . . . parenting abilities." The second factor could place her children "at risk of emotional harm or physical harm if they were with her while she's relating to people in this way." The third showed D.D. was involved in destructive situations, creating a risk that the children would suffer physical harm from exposure to her "borderline personality style and all of the chaos that comes with it."

Detailing these areas, Dr. Loving noted D.D. had "a very lengthy break from reality," was hearing voices and became profoundly depressed and paranoid, requiring admission to Ancora Hospital. During the evaluation D.D. showed no acute symptoms, but Dr. Loving explained there was a "risk for reoccurrence of these mood symptoms and . . . psychosis" if she faces "overwhelming stress in her life." She was not prescribed medication, but expressed her position that she would not again take medication, raising serious concerns regarding ...

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