On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-286-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson, and Ostrer.
The law guardian appeals from the Family Part order issued by Judge Verna Leath dismissing a Title 30 complaint against
L.W., the biological mother of K.W., born September 1, 1988. The law guardian sought a conditional dismissal of the complaint. Judge Leath, who, before dismissing the complaint, had presided over the proceedings for three years, determined there was no basis under Title 30 to impose upon the Division of Youth and Family Services (Division) the obligation to continuously supervise L.W. indefinitely when K.W. was no longer at risk. In addition, because she determined there was no jurisdictional basis to order a conditional dismissal, the judge found there was no reason to postpone the dismissal of the complaint pending resolution of the law guardian's motion filed three days before the dismissal hearing. We affirm.
L.W. is the mother of ten children, Natalie, Stacey, Kelly, Preston, Shannon, K.W., Sean, Jerry, Bryan, and Nathan,*fn1 whose ages ranged from seven months to twenty-two years old at the time the court dismissed the Title 30 complaint in October 2010. K.W., who is the subject of this appeal, suffers from Partial Tetrasomy 15Q Deletion, a rare chromosomal abnormality that causes multiple medical and developmental issues. He is a non-verbal child who communicates through a combination of hand gestures and limited vocalization. His medical issues include scoliosis, partial hearing loss and difficulty reaching and maintaining a healthy weight.
In 2003, L.W. separated from K.W.'s biological father, S.W., who was accused of sexually molesting one of L.W.'s older daughters. She returned to Jamaica, her native country, with K.W. and her other minor children. After two and one-half years there, L.W. experienced financial difficulties and lost her apartment. The family moved to the United African Improvement Association ("UAIA"), a children's home and shelter.
In October 2006, L.W. left Jamaica without her children and returned to the United States. She left two of her children, including K.W., in the care of relatives, and the other minor children at the UAIA. Upon her arrival in the United States, she began to renovate a home she owned jointly with her mother, Z.W. L.W. and Z.W. had a strained relationship, although her eldest child, Natalie, resided with Z.W.
On January 9, 2007, L.W. contacted the Division to report that Natalie, at Z.W.'s urging, had returned to Jamaica and was bringing Stacey and Kelly back to the United States. L.W. told the Division that Natalie was removing the children from Jamaica without her consent, she objected to the children residing with Z.W., and she was unable to provide housing for her children at that time. L.W. was at Newark International Airport when Stacey and Kelly, as well as Preston, arrived the next day and a dispute erupted between L.W. and Z.W. Port Authority Police intervened, took the children into custody, and contacted the Division.
On January 12, a Dodd*fn2 hearing was held with regard to Stacey, Kelly and Preston. Preston was placed in a foster home, and Kelly and Stacey were placed in a homeless youth center. The three children told the Division they had been homeless and living "on the street" in Jamaica for two weeks prior to Natalie retrieving them because their relatives had put them out. L.W., however, reported that the children had run away.
On January 20, Shannon, K.W., Sean, and Jerry also arrived at Newark International Airport, Natalie having once again returned to Jamaica to remove them without her mother's consent. Following their arrival, Z.W. placed the children with a friend, who resided in a two-bedroom apartment. On January 24, Z.W. contacted the Division, requesting placement of the children in its custody. Learning that Z.W. had left the children to sleep for several days on the floor of her friend's apartment, the Division removed the children.
On January 30, 2007, a second Dodd hearing was held and Shannon, K.W., Sean, and Jerry were added to the open abuse and neglect action. Shannon, Sean, and Jerry were placed in separate foster homes, and K.W. was hospitalized. During this second hearing, the court learned that L.W. had left her children in the care of a children's shelter in Jamaica while she returned to the U.S. to ready their home in Irvington. However, L.W.'s plans for renovation "could not be brought to fruition" at that time. The court ordered weekly therapeutic visitation between L.W. and her seven children. L.W. attended visitation regularly and took an interest in her children's grades and behavior in school.
Although litigation was initiated under an abuse and neglect docket,
it was converted to a Title 30 matter on May 7, 2007, after L.W.
entered into a stipulation that she was unable to provide adequate
housing for her children when they arrived and agreed to surrender her
children to the Division's custody until such time as she had adequate
housing for all seven children. The stipulation was also entered
without any finding of abuse or neglect on her part*fn3
and provided that the "natural mother agrees that the
Division shall make application to International Social Services in
order that the Jamaican address that she provides is assessed and
approved before custody is returned" and "upon approval by
International Social Services of the address presented, the Division
is willing to assist [L.W.] and the children to return to Jamaica."
By July 26, 2007, K.W. had been placed at Dooley House,*fn4
while his siblings remained in foster placement. In October of 2007, the Division recommended that L.W. be evaluated by a psychiatrist and noted that up to that point, the Division had been unable to assess her ability to care for her children as she was residing in Jamaica.
In January 2008, the Division presented Judge Leath with a permanency plan to reunite L.W. with her four youngest children, Shannon, K.W., Sean and Jerry, within three months. The Division initially intended to reunite K.W. and L.W. and, depending upon the success of that reunification, later reunite L.W. with Shannon, Sean and Jerry. In anticipation of L.W.'s reunification with K.W., a child study team assessed K.W.'s educational needs for special needs placement.
In May 2008, the Division presented a revised permanency plan which proposed that Stacey, Kelly and Preston be adopted by Z.W. The plan also proposed that L.W.'s four youngest children be subject to concurrent plans for reunification and/or termination of parental rights.
By September 2008, Stacey, Kelly and Preston were in Z.W.'s custody, while Shannon, K.W., Sean, and Jerry remained in foster placements. By then, L.W. had completed a Mentally Ill Clinical Abuser ("MICA") program and all other programs the Division had recommended. L.W. also submitted to regular urinalysis and never tested positive for any illegal substances. L.W. continued to receive individual counseling.
At a permanency hearing held on October 28, 2008, the Division presented a plan for Preston, Shannon, K.W., and Jerry, which proposed terminating L.W.'s parental rights to the children, followed by adoption. This change from the May 2008 permanency plan of reunification was not based on any evaluations performed. Rather, the Division recommended the change because L.W. "gave birth to [Bryan] and did not disclose that birth and did not obtain medical care[.]"
On July 2, 2009, the Division presented Judge Leath with a written permanency plan to terminate L.W.'s parental rights to Stacey, Kelly and Preston, followed by adoption by Z.W.*fn5 In addition, the Division proposed reunification for Shannon, K.W., Sean, and Jerry with L.W. Approximately three weeks later, the law guardian requested a permanency hearing if the Division intended to pursue its most recent goal of reunification as to K.W. Judge Leath inquired as to the nature of the law guardian's objection to the Division's most recent permanency plan and specifically inquired as to whether the objection was based upon K.W.'s physical needs and an opinion that those needs would not be met by L.W., or whether there was some other objection. The law guardian responded:
I think it is a combination from what I can gather [from the verbal discussion with psychologist Dr. Susan Esquilin, Ph.D., ABPP]. . . . A piece of it is her concerns about the instability of the mother. And, so, she's . . . not opining as to the other children. I haven't asked her to. But I think what we discussed this morning was that she had some concerns in general about the mother's overall psychological makeup and instability that may be relevant to at least the law guardian to the younger children.
Her ultimate recommendation combines also her concerns about the needs -- the exceptional needs of [K.W.] and is only to [K.W.]. I hope that answers -- The judge granted the law guardian additional time to submit a report from Dr. Esquilin.
On September 14, 2009, Judge Leath ordered that physical custody of Shannon, Sean, and Jerry be transferred to L.W. by October 26, 2009. The order expressly noted that "[t]he conditions/circumstances leading to the removal of the child(ren) have been . . . corrected and it is safe to return the children because [L.W.] has successfully completed individual counseling and is in compliance with the Division's case plan." At the same time, the judge also approved the Division's plan to terminate L.W.'s parental rights to Kelly and Preston, and their adoption by Z.W.
On March 15, 2010, the Division presented a new permanency plan to the court, changing its goal of termination of L.W.'s parental rights to K.W. to reunification. The Division advised Judge Leath that K.W.'s siblings, who had been reunited with their mother the previous year, were doing well under her care. The law guardian "strongly opposed" the change in the permanency plan as to K.W. She expressed her concern about the complexity and severity of [K.W.]'s medical and developmental needs, coupled with the mother's mental illness. Four of these experts, Dr. Singer, Iofen (phonetic), Dyer, and [Esquilin,] have all diagnosed this mother with some form of a personality disorder, and that coupled with the complexity of [K.W.]'s illnesses makes for a very grave situation.
The law guardian also expressed the view that the Division had been neglectful of K.W.'s needs.
Judge Leath responded to these expressed concerns by noting that K.W.'s special needs that could not be met by the "custodial guardian were needs that had to be supplied by outside vendors." She continued:
But the question before this [c]court in assessing the appropriateness of the change of the permanency goal is not whether [K.W.] does and will continue to present with cognitive and physical deficits. But whether he will be ...