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New Jersey Division of Youth and Family Services v. M.S

December 30, 2011


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Hudson County, Docket No. FG-09-71-08.

Per curiam.



Submitted: November 30, 2011

Before Judges Cuff and Lihotz.

In this appeal, we review an order terminating the parental rights of M.S.*fn1 to her twelve-year-old son, Robert.*fn2 Contrary to M.S.'s arguments, we hold that there was sufficient, credible evidence to establish each of the statutory elements required to permit termination of parental rights. We also hold that the trial judge did not impermissibly limit the scope of the remand ordered by this court, and the original law guardian properly sought to be relieved and the newly-appointed law guardian acted properly in representing the child's best interests. Accordingly, we affirm the June 26, 2008 order terminating M.S.'s parental rights to Robert.

The New Jersey Division of Youth and Family Services (the Division) filed a complaint seeking the termination of the parental rights of M.S. to her sons, Robert and P.S., on September 19, 2007. At that time, Robert was almost nine years old and P.S. was fifteen.*fn3 The complaint was the culmination of the Division's involvement with the family, which began on March 12, 1996.

Judge Mark Nelson tried the case over five days in June 2008. In his June 26, 2008 opinion, Judge Nelson found that M.S. had engaged "in numerous incidents of anti-social behavior." These incidents included two arrests and periods of incarceration on a drug distribution charge (2004), receiving stolen property (2006), and fraudulent use of a credit card (2007). In addition, the judge found that M.S. had experienced episodes of homelessness or unstable housing arrangements. Judge Nelson found these circumstances were influenced not only by a personality disorder with prominent anti-social, paranoid and borderline features, causing the Division to remove Robert and his brother on three occasions between 2004 and 2007, but also promised to lead to continued instability in the future, and constituted harm to Robert.

Judge Nelson also found that the personality disorder will continue to prevent M.S. from providing the stability Robert requires and that reunification was neither appropriate now nor in the foreseeable future. The judge found that M.S. has a "poor sense of personal identification and poor sense of judgment . . . ." He also found that M.S. has "extraordinary little appreciation of the impact that her repeated arrests and incarcerations have had on her two sons and the effects of the prior removals on her sons."

The judge also found that the evidence submitted by the Division supported the opinion of psychologist, Dr. Elizabeth M. Smith. She opined that M.S. had made little, if any, progress through years of involvement with the Division and lacked the insight to know what was necessary to provide a safe and stable home for her children. The judge also found that M.S. is unable to distinguish her needs from the needs of her children. As such, M.S. is unable to recognize that Robert's Attention Deficit Hyperactivity Disorder (ADHD) diagnosis requires a structured plan that she must follow.

Judge Nelson recognized that Robert is emotionally bonded to his mother, and termination will cause him emotional harm. On the other hand, Judge Nelson found that any reunification would surely fail, and that failure would be emotionally devastating to Robert. In the end, the judge accepted the opinions of Drs. Frank J. Dyer and Smith that "[M.S.] has continued to harm [Robert] and continues to harm him by her behavior, such as, the numerous removals, numerous arrests, her outbursts and lack of stable housing." He also accepted the opinion of Dr. Dyer that supportive adoptive parents, who appreciated Robert's distress, could mitigate the harm caused by severance of the parental bond.

Judge Nelson also found that the Division provided diligent efforts to help M.S. overcome the circumstances that required repeated removals of Robert from her care. The services provided to M.S. by the Division included substance abuse evaluations and offers of counseling, psychological evaluations and repeated parenting skills classes, rental assistance and other efforts to permit her to maintain stable housing. In fact, Judge Nelson characterized the Division's efforts to reconcile the family as "extraordinary." Yet, the judge also found that "the Division has provided twelve years of reasonable efforts to [M.S.]. [M.S.] has simply failed on numerous occasions to engage and/or comply with services."

In addition, Judge Nelson found that the Division evaluated and considered several persons suggested by M.S. as potential caregivers for Robert. The Division pursued Kinship Legal Guardianship with the foster parents, but they ultimately rejected this path because of interference by M.S. Rather, the foster family informed the Division they wished to adopt Robert. Thus, the judge found that after the provision of extraordinary services to permit restoration of the family unit, M.S.'s behavior or failure to engage in the services provided ultimately rendered termination of her parental rights the only "reasonable, realistic alternative[]."

Finally, Judge Nelson found that termination of M.S.'s parental rights to Robert would not do more harm than good. In doing so, he recognized that Robert had a very strong attachment to his mother and would suffer emotional harm by the severance of the parental relationship. However, he accepted the opinions of Drs. Dyer and Smith that the risks of returning him to his mother's care outweighed the negative effects of termination of the parental relationship. The judge also accepted the doctors' opinions that Robert's special needs required "structure in his life and stability," and "[a] future removal or disruption in his life would be extremely harmful to [him.]" The judge also found that Robert simply "needs the opportunity to just be a child. He needs the opportunity to go to school, make friends and engage in activities that most 8 year olds engage in. He does not need ...

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