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New Jersey Division of Youth and Family Services v. E.W

March 15, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
E.W.,
DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF K.J. AND J.J., MINORS.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket Nos. FG-16-28-10 and FG-16-11-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted on January 18, 2012

Before Judges Yannotti, Espinosa and Kennedy.

In these consolidated appeals, defendant E.W. appeals from the Family Part's judgments of December 6, 2010 and February 14, 2011, terminating his parental rights to his son K.J. and his daughter J.J., respectively.*fn1 Defendant raises the following points on appeal:

POINT I THE TRIAL JUDGE'S DENIAL OF THE DEFENDANT'S MOTION FOR A CONTINUANCE WAS JUDICIAL ERROR THAT SEVERELY CRIPPLED COUNSEL'S ABILITY TO PROPERLY DEFEND [E.W.] AT TRIAL AND THEREFORE, THE DECISION MUST BE REVERSED POINT II THE DIVISION FAILED TO SATISFY BY CLEAR AND CONVINCING EVIDENCE THE REQUIREMENTS OF N.J.S.A. 30:4C-15.1, AND, THEREFORE, [E.W.'S] PARENTAL RIGHTS MUST BE REINSTATED

A. The trial judge made improper findings of fact to support his decision to terminate parental rights

B. The trial judge improperly found that the first prong of the statute was satisfied

C. The trial judge improperly found that the Division satisfied the second prong of the statute, and, therefore, [E.W.'s] rights must be reinstated

D. The trial judge improperly found that the Division satisfied the third prong of the Statute

E. The Division did not conduct a bonding evaluation with [E.W.] and his children or with the foster mother and the children

After considering the record and the briefs in light of the applicable law, we are satisfied that the trial judge's findings and conclusions are firmly supported by substantial, credible evidence on the record as a whole. See, e.g., N.J. Div. of Youth and Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part and remanded, 179 N.J. 264 (2004) certif. denied, 186 N.J. 603 (2006). Moreover, we find that the trial judge's denial of defendant's application for a continuance was not error. We affirm.

I

E.W. and A.J. are not married. They are the biological parents of K.J., born September 5, 2008, and J.J., born September 3, 2009. Although A.J. has not appealed the termination of her parental rights, A.J.'s background is intertwined with E.W's background and we must therefore review the testimony and evidence respecting her history, as well.

The involvement of the Division of Youth and Family Services (DYFS or Division) with E.W. and A.J. commenced as early as 2007 when it received a referral with respect to another child. DYFS again received a referral from St. Joseph's Hospital upon the birth of K.J. on September 5, 2008. The referral was made to DYFS because A.J. had been previously diagnosed with an affective disorder and depression. A DYFS representative met with A.J. in the hospital and obtained her consent to a plan whereby she and K.J. would reside with A.J.'s sister. DYFS arranged for the Loving Care Agency to stay with K.J. and A.J. when the sister was out at work.

A.J. had previously been diagnosed as suffering from schizo-affective disorder and bipolar disorder and had been hospitalized twice at Greystone Park Psychiatric Hospital. Consequently, in addition to the supervision plan, A.J. agreed to comply with the Division's recommendations for psychiatric and substance abuse treatment. On September 11, 2008, Dr. Samiris Sostre, M.D., examined A.J. and recommended that her contact with the child be supervised "until her psychiatric symptoms are stabilized."

E.W. at this point had a history of aggravated assault convictions and substance abuse. E.W. was incarcerated on August 19, 2008, on an assault charge involving A.J. The Division visited the incarcerated E.W. and referred him for substance abuse assessments. However, E.W. failed to attend his first scheduled substance abuse assessment appointment, as well as several rescheduled appointments.

On November 3, 2008, DYFS effected a Dodd removal of K.J. after receiving a referral from a Loving Care agency worker who visited the home of A.J.s sister and found neither A.J. nor K.J. at home.*fn2 The Division investigated and located K.J. in E.W.'s room at a men's boarding house in Paterson. According to E.W., K.J. had been in his care for two weeks after A.J. left K.J. with him. According to E.W., A.J. would "come and go" and he was not sure where she was at any given time.

E.W.'s residence in the rooming house consisted of a single room with a bed and a closet. Boarders in the rooming house shared a communal kitchen and bathroom facility. E.W. later stipulated that this housing arrangement was inappropriate for the care of the child.

DYFS removed K.J. from E.W.'s care and placed him in foster care where he has lived ever since. The Division cited the following reasons for removing K.J.: 1) inappropriate housing; 2) E.W.'s use of controlled dangerous substances; 3) E.W.'s non-compliance with substance abuse assessments; and 4) A.J.'s breach of her agreement to have only supervised contact with K.J. Thereafter, DYFS workers met with both E.W. and A.J. and referred them again for substance abuse assessments and psychological evaluations. E.W. attended a substance abuse assessment in December 2008 and was referred for outpatient treatment. However, he never attended treatment. Dr. Sostre arranged for a psychological evaluation of E.W., but he never attended and never contacted the Division to reschedule the evaluation. E.W. declined to participate in the psychological evaluation scheduled for December 3, 2008, because it would not be "confidential." The Division again referred E.W. for substance abuse assessments on many occasions from January through April 2009, but E.W. did not attend the assessments and he did not contact the Division.

E.W. was again incarcerated for a parole violation on April 8, 2009, and remained incarcerated until July 10, 2009. During E.W.'s imprisonment, Dr. Sostre met with E.W. in an effort to encourage him to participate in substance abuse assessments and treatment, as well as psychological evaluations. Following his release from incarceration on July 10, 2009, ...


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