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

May 8, 2012

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



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-0039-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 24, 2012 --

Before Judges Baxter, Nugent and Carchman.

Defendant K.W., the biological mother of Kate,*fn1 born in October 2007, appeals from the final judgment issued by the Family Part terminating her parental rights. K.W. contends that plaintiff Division of Youth & Family Services (Division or DYFS) failed to prove by clear and convincing evidence the four statutory prongs contained in N.J.S.A. 30:4C-15.1(a). She further maintains that the judge erred by barring a portion of the testimony of her witness Patricia Johnson, and by admitting hearsay testimony and documents upon which the judge relied in terminating K.W.'s parental rights.

We reject each of these contentions, concluding that the evidence amply satisfied the statutory standard for termination of parental rights; the judge did not restrict Johnson's testimony but instead permitted K.W. to present all evidence that was within the proffer K.W. made; and the hearsay statement concerning K.W.'s statement to a therapist, as repeated in the testimony of a DYFS caseworker -- that K.W. intended to kidnap Kate and run away -- did not play a role in the judge's decision to terminate K.W.'s parental rights, but was mentioned by the judge only in connection with visitation pending appeal. We affirm.

I.

The Division's involvement with K.W. began when the hospital in which K.W. gave birth to Kate notified the Division that K.W. did not want to take her baby home with her at the time of discharge because she was afraid to go home. K.W. did not want to expose the child to the "negative, unstable and unsafe . . . environment" of the home she shared with her parents and fifty-six year old second cousin, D.W. K.W. advised hospital staff that Kate was born as the result of K.W.'s rape by D.W. When Kate was five days old, DYFS placed her with the foster parents with whom she resides today.

Following the removal of Kate from K.W.'s care, the Division filed a verified complaint seeking custody of the child. By order of October 31, 2007, the judge concluded that the child's removal was necessary to protect her from "imminent danger" resulting from K.W.'s psychiatric problems and inability to parent.

Shortly thereafter, DYFS arranged for an initial psychological evaluation of K.W. by Dr. Margaret Doherty DeLong. Dr. DeLong opined that K.W. "demonstrated significant problems in self-sufficiency" and has "difficulty [maintaining] herself independently," principally because K.W. suffers from "low cognitive functioning." As an example of K.W.'s cognitive impairment, Dr. DeLong noted that K.W. was not able to comprehend the written testing materials, and tended to demonstrate "concrete thinking." Dr. DeLong characterized K.W.'s "parenting knowledge and skills" as "below average," commenting that K.W. admitted that she needed "help" caring for her daughter.

K.W.'s inability to live independently of her parents was of grave concern to Dr. DeLong, as K.W.'s mother suffered from schizophrenia and her father was an alcoholic who had been verbally and physically abusive to both K.W. and her mother, once threatening her mother with a knife. Dr. DeLong also opined that K.W. demonstrated irrational thinking, as K.W. believed that her mother would help her raise Kate, even though K.W.'s mother herself needed to be taken care of due to her own psychiatric disabilities.

DYFS arranged for Dr. DeLong to reevaluate K.W. in August 2008, by which time Kate was nine months old. After conducting a clinical interview and administering psychological tests, Dr. DeLong opined that despite the parenting skills training DYFS had provided, K.W. continued to demonstrate severe deficits in that area. She explained:

Despite participating in parenting skills training, [K.W.] demonstrate[s] a belief in the use of physical discipline, an expectation for obedience, an expectation for [Kate] to meet [Kate's] own emotional needs, and lack of empathy. In addition, it was reported that [K.W.] needed instruction regarding holding her daughter and diapering her properly[.] . . . It is highly recommended that she participate in . . . additional . . . individual instruction regarding parenting and child care. [Although K.W.] is likely to benefit from parenting skills training that is related to very concrete skills[,] [s]he does not appear to have the cognitive ability to benefit from material or instruction that involves abstract thinking. This also speaks to [K.W.'s] limited ability to provide adequate parenting independently. Additionally, DYFS secured a neuropsychological evaluation of K.W., which was performed by Dr. James Battaglia in early 2009, by which time Kate was fifteen months old. Dr. Battaglia's conclusions mirrored those of Dr. DeLong. Based on the psychological testing he administered, Dr. Battaglia opined that K.W. was functioning in the "extremely low range" of cognitive ability, as she tested in the third percentile for intellectual functioning, the second percentile for verbal comprehension, the first percentile for conceptual reasoning, and the first percentile for working memory.

Dr. Battaglia noted that although K.W. "sincerely desire[d] to parent her young child," permitting her to do so would expose Kate to a "real risk of harm," "abuse" and "neglect." Dr. Battaglia also expressed concern that K.W.'s limited ability to "anticipate consequences and make decisions" would endanger Kate if the child were returned to her mother's care. Ultimately, Dr. Battaglia concluded:

[K.W.] does not have a realistic appraisal of what is involved in raising a child. . . . Her limitations will interfere with her ability to grasp her daughter's developmental/medical condition, administer medications, or schedule and keep appointments. . . . [K.W.] has limited means of independently developing alternatives to the problematic childrearing practices she [herself] experienced. . . .

[H]er . . . problem solving skills are limited, she has problems with anger management, and her judgment is very poor.

A medical evaluation of Kate revealed that she was suffering from serious and wide-ranging medical problems, which compounded the challenges that would face K.W. if Kate were returned to her care. Although Kate had no abnormalities at birth, she developed a number of serious health problems and developmental disabilities, including an irregular heartbeat, a spinal abnormality, a seizure disorder, and a brain malformation, which typically requires surgical intervention. By the time Kate was two years old, she had regressed considerably in all areas of child development: she was no longer able to walk up the stairs without assistance, reverted to crawling, began walking in a abnormal fashion and lost the few words that she had been able to say. Her loss of speech resulted in behavioral problems including increased frustration and the throwing of objects. She also began to deliberately and repeatedly bang her head against the wall. As a result of these conditions, Kate required extensive physical, speech and language therapy.

A child study team evaluation conducted when Kate was two years and ten months old classified her as suffering from a "significant developmental delay" and ranked her in the first, and lowest, percentile. As a result, DYFS provided ongoing services to Kate, including speech therapy, early intervention services, and treatment by a cardiologist and a neurologist.

In light of the myriad challenges facing K.W., DYFS provided an extensive array of services designed to culminate in reunification. Specifically, although the standard DYFS supervised visitation consisted of one hour per week, DYFS afforded K.W. four hours per week until November 2010, at which time DYFS reduced the visitation to two hours per week. Initially, K.W.'s visits with Kate were supervised by a ...


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