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New Jersey Division of Youth and Family Services v. I.C


January 27, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-54-09.

Per curiam.



Submitted December 14, 2011

Before Judges Fuentes, Graves and Koblitz.

I.C., mother of S.A.A.C. (fictitiously, Stuart), appeals the February 8, 2011 order terminating her parental rights. After reviewing the record in light of the contentions advanced on appeal, we affirm substantially for the reasons stated by Judge James Hely in his written opinion. The findings are "based on clear and convincing evidence supported by the record," and the legal conclusions are sound. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004).

I.C. gave birth to Stuart in March 2007.*fn1 The Division of Youth and Family Services (Division) first investigated the family in October 2007, after receiving a report from a caseworker in New York that I.C. was smoking marijuana and breastfeeding Stuart while high. It was also reported that I.C. was prostituting herself and left Stuart in the care of others when doing so. The New York caseworker indicated that I.C. had a history of depression, for which she had been under the care of a psychiatrist, but that she stopped treatment and ceased taking her depression medication when she became pregnant with Stuart.

The New Jersey Division caseworker spoke with I.C. and told her about the allegations, at which time I.C. admitted to her involvement in prostitution.

In the beginning of November 2007, I.C.'s cousin, T.W., informed the Division that I.C. had been arrested for prostitution in New York City. During the same call, T.W. indicated that the Division could rely on her as a resource parent for Stuart.

The Division subsequently contacted I.C. on her cell phone.

I.C. admitted to her arrest. The Division thereafter assisted

I.C. in obtaining residency at the YMCA in Plainfield and the investigation ended.

A few weeks later, I.C. was terminated from the YMCA's emergency housing program for being defiant to staff and refusing to comply with the program's rules and regulations. As a result, the Division performed an emergency removal of Stuart and placed him in a resource home. The Division immediately sought to establish a visitation plan for I.C. with Stuart.

In January 2008, the court ordered the Division to provide

I.C. with services, including a psychological evaluation, substance abuse evaluation, individual counseling and parenting skills training. The order also provided for a specific visitation schedule. On the same day, I.C. tested positive for THC, the active ingredient in marijuana.

The Division made efforts to identify a relative to care for Stuart. His maternal grandmother, E.L., declined to serve as caretaker. Stuart was ultimately placed in the care of I.C.'s cousin, T.W., in February 2008.

In March 2008, I.C. underwent a psychological evaluation conducted by Rachel Fite, Ph.D. Dr. Fite indicated that I.C. had a history of residential instability, unlawful behavior, and interpersonal problems. Dr. Fite opined further that I.C.'s prospects for caring for Stuart independently were poor. She therefore recommended that Stuart remain in placement with T.W.

The case was reviewed by the court in May 2008 and again in August 2008. In an effort to promote reunification, the court again ordered the Division to provide I.C. with services, including train passes so that she could attend parenting skills classes. The court also ordered I.C. to continue with psychiatric treatment and therapy.

In October 2008, Dr. Fite conducted another psychological evaluation of I.C. Dr. Fite concluded that I.C. presented a risk to Stuart's health and welfare and urged the Division to change its goal from reunification to termination of I.C.'s parental rights. She observed that I.C. needed intensive mental health treatment, including both in-patient and residential care, to have an opportunity at establishing long-term psychiatric stability. She characterized I.C.'s prognosis as "very poor" and determined her to be unable to provide adequate care for Stuart in the foreseeable future.

In February 2009, the Division notified the court that I.C. was excluded from the medical center at which she was receiving psychiatric services because of non-compliance. Also in February 2009, the agency providing parenting skills training to

I.C. closed her case for failure to attend.

The court again reviewed the case in June 2009. The court noted that I.C. missed numerous scheduled evaluations in spite of the Division's offer to provide train passes. A subsequent order indicated that I.C. had refused the passes.

In July 2009, the Family & Children Services Agency notified I.C. that it was closing her case because she failed to follow up with a referral for individual therapy. Also in July 2009, Dr. Fite issued another report that included a psychological evaluation of I.C. and bonding evaluations of Stuart with both I.C. and T.W. In recommending termination of I.C.'s parental rights, Dr. Fite found that "[I.C.] has clearly established a long-term pattern of erratic, irresponsible behavior and continues to live a marginal lifestyle which will impair [Stuart's] health and development if he were to re-establish a parental relationship with her." Moreover, Dr. Fite found "no evidence of any positive attachment between [Stuart] and [I.C.]" On the other hand, she found Stuart's interactions with T.W. "indicated a strong, secure, and psychologically healthy attachment."

The Division also had Dr. Alexander Iofin evaluate I.C. on three separate occasions. Dr. Iofin's reports concluded that I.C. had been the victim of neglect, as well as physical and sexual abuse. He determined her psychiatric issues are chronic and severe, and opined that even with continued treatment, she would be incapable of providing minimally adequate care for Stuart. He noted that I.C. receives Social Security Disability benefits due to her psychiatric illnesses. At trial, Dr. Iofin testified that I.C. suffers from psychosis, bi-polar disorder, and schizoid affective disorder.

In September 2009, I.C. gave birth to a baby girl. Shortly thereafter, she was hospitalized for four months at Montefiore Medical Center for psychiatric treatment. She had also been hospitalized at Mt. Sinai Medical Center due to mental illness for more than five weeks during her pregnancy.

In July 2010, Dr. Fite performed a fourth psychological evaluation of I.C. and second bonding evaluation of Stuart and I.C., and found no improvement in their relationship or in I.C.'s severe, unacknowledged and largely untreated mental illness. Dr. Fite again recommended termination of I.C.'s parental rights based on a finding that I.C. presents a "long-term and ongoing risk" to Stuart's health and welfare and that her behavior was unlikely to change in the foreseeable future. Dr. Fite opined that termination of I.C.'s parental rights was "likely to have no negative emotional or psychological impact on [Stuart]." She found that "if [Stuart] were to be legally separated from" T.W., "he would undoubtedly experience severe and enduring harm."

A Division caseworker, Dr. Iofin and T.W. testified at trial. T.W., who wished to adopt Stuart, indicated that her cousin I.C. had attended Thanksgiving dinner at T.W.'s house with Stuart and the family. The defense presented no witnesses or documentary evidence.

Judge Hely issued a thorough written opinion finding that the Division had satisfied the four prongs of N.J.S.A. 30:4C-15.1 by clear and convincing evidence. As a result, he terminated I.C.'s parental rights to Stuart.


A. There Is No Evidence That I.C. Harmed Her Child And Therefore The Trial Court's Determination As To The First Prong Of The Statute Is Not Supported By Substantial, Credible Evidence.

B. There Was Not Clear And Convincing Evidence To Support The Trial Court's Determination That I.C. Was Unwilling Or Unable To Parent Her Child And The Trial Court's Decision Is Not Supported by Substantial, Credible Evidence.

C. The Division's Efforts To Reunify The Family Were Insufficient To Satisfy Its Obligations Under The Third Prong.

D. The Trial Court's Conclusion That Termination Would Not Do More Harm Than Good Was Not Supported by Adequate, Credible Evidence.

The law governing our analysis is well-known. Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, the constitutional protection surrounding family rights is not absolute and may be tempered by the State's parens patriae responsibility to protect the welfare of children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). In some cases, severance of the parent-child relationship may be required to protect the child. A.W., supra, 103 N.J. at 599.

Under N.J.S.A. 30:4C-15.1(a), a court is authorized to terminate parental rights if the Division proves the following by clear and convincing evidence:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).]

"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

Our scope of review of a trial court's termination of parental rights is limited to "determin[ing] whether a trial court's decision . . . was based on clear and convincing evidence supported by the record before the court." P.P., supra, 180 N.J. at 511 (citations omitted). We will not disturb a trial court's factual findings "'unless they are so wholly unsupportable as to result in a denial of justice.'" Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).

I.C. maintains that the Division failed to prove that her parental rights should be terminated. When the biological parents resist termination of their parental rights, the court's function is to decide whether the parents can raise their children without causing them further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

Judge Hely properly found that I.C.'s inability to provide a stable home for Stuart in the first few months of his life endangered Stuart's welfare. He also found that I.C.'s severe mental illness, which remains largely untreated, prevents her from providing stability in the future, thereby satisfying the first prong of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. See N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418 (App. Div. 2001) (affirming the termination of the parental rights of a mother whose severe mental illness rendered her incapable of caring for her child). As Judge Hely found, I.C.'s mental illness also renders her unable to eliminate the harm she poses for Stuart, thus satisfying prong two of the statute.

With regard to prong three, the sufficiency of the Divisions' efforts to reunify, Judge Hely found that "there is no question that the Division has made long and reasonable efforts to provide services to [I.C.] to attempt to correct the circumstances which led to [Stuart's] removal[.]" The Division provided supervised visitation, parenting skills training, train tickets to attend services, counseling sessions in New York where I.C. lived, and evaluations. The Division experienced some difficulties in providing services because I.C. lacked stable housing and was overtly hostile to the Division workers.

I.C. also was ejected from programs for noncompliant behavior, including lack of attendance. The record amply supports Judge Hely's findings concerning prong three.

As to prong four, the bonding evaluations confirm Judge Hely's findings that Stuart will not be harmed by the termination of I.C.'s parental rights. He has lived most of his young life with T.W. and relates to her as his mother. He would suffer extreme harm by a severance of this bond.


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