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New Jersey Division of Youth v. K.Y.B. and G.A

June 28, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
K.Y.B. AND G.A., DEFENDANTS-APPELLANTS. IN THE MATTER OF THE GUARDIANSHIP OF T.D.M.A., A MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-193-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 6, 2012

Before Judges Graves, J. N. Harris, and Koblitz.

In these consolidated appeals, defendants K.Y.B. (Karen) and G.A. (George) seek review of the Family Part's judgments terminating their parental rights to their developmentally disabled daughter T.D.M.A. (Tasha).*fn1 Both parents contend that plaintiff New Jersey Division of Youth and Family Services (the Division) did not prove by clear and convincing evidence the requisite statutory factors to establish that Tasha's best interests would be served by severance of their parental ties. We note that the Law Guardian supports termination of both parents' rights to Tasha. After considering the record in light of the applicable law, we are satisfied that the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., N.J. Div. of Youth & 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). Accordingly, we affirm the judgment against both parents.

I.

In July 2001, at birth, Tasha tested positive for methadone. By the time of trial, as recounted by the Division's witness Justine Cedeno, Tasha was diagnosed with a seizure disorder requiring daily medication and "routine follow-up[s] with a neurologist"; asthma requiring a pump inhaler, which is monitored by her primary care physician; a limp requiring that she be "seen by an orthopedic doctor"; crossed-eyes necessitating eye surgery; and urinary incontinence being treated by a urologist.

In 2005, the Division was informed that Tasha had been taken to a hospital emergency room for a convulsion where doctors discovered that she had low levels of seizure medication. Karen was instructed to immediately take Tasha to a neurologist for a follow-up examination, which she failed to do.

In April 2007, the Division confirmed that Karen tested positive for ingesting cocaine, marijuana, benzodiazepines, and opiates. She and George were not living together at that time, but George occasionally visited his daughter. Karen and Tasha resided with Tasha's aunt and grandmother in Newark where the three adults cared for the child. After an investigation, the Division determined that "the risk [of harm] to [Tasha] appear[ed] to be low" due to "the care of her mother, grandmother, and aunt." The Division, however, required that Karen comply with a drug treatment program and not engage in any drug use "other than methadone."

On September 20, 2007, George was arrested for a narcotics violation. This triggered a parole violation for a crime previously committed in New York, which resulted in George's incarceration from March 2008 to August 2009.

In February 2008, Karen was discharged from her outpatient drug treatment program because of non-compliance, including her continued abuse of cocaine and alcoholic beverages. In April 2008, Karen's methadone clinic contacted the Division after she screened positive for cocaine, opiate, and benzodiazepine use. The clinic also reported that Karen was not compliant with her treatment and that her attendance was sporadic.

That same month, the Division received an anonymous referral concerning Tasha's living arrangements. The referent alleged that drug dealers were visiting Karen's Newark home and that unknown persons were staying there in Tasha's presence. Karen agreed to a case plan where her mother and her adult daughter would oversee Tasha's care.

In May 2008, Karen was terminated from the Substance Abuse Initiative (SAI) program after failing to attend more than seventy-five percent of the classes and had three positive drug tests in four weeks for cocaine and benzodiazepine use. As a result of Karen's non-compliance with the SAI, she risked losing public assistance benefits.

On June 4, 2008, Karen failed to appear for an initial appointment at another drug treatment program. A few months later, she was arrested for assault, and was consequently incarcerated for several months. In November 2008, Karen failed to report to the Division. In December 2008, the Division located her and scheduled a substance abuse evaluation that she never attended. In January 2009, the Division again attempted to conduct Karen's substance abuse assessment, but again she failed to attend.

At some point between January 2009 and March 2009, the Division determined that Karen and Tasha were living at a friend's home in Newark. The dwelling allegedly had no heat or food. Upon further investigation, the Division found that Tasha and her mother were sleeping on a mattress on the floor and some of their belongings were stored in trash bags. However, because the home contained food and the Division found no safety hazards, it did not substantiate neglect. During the investigation, Karen informed a Division caseworker that she and Tasha had left her prior home several months earlier due to a drug raid in the building. Karen also revealed that she lost her welfare benefits as a sanction after failing to report to the welfare agency. She admitted heroin and cocaine abuse, and informed the Division that she had started using heroin when she was pregnant with Tasha.

The Division lost contact with Karen from March 4 to March 11, 2009. On March 11, 2009, the Division received a referral reporting that Karen was unable to care for Tasha and that the child was sleeping on a blanket on a mildew-infused carpet, which negatively affected her asthma. On April 13, 2009, the Division located Karen and Tasha living in an abandoned building with no heat. The Division informed Karen that she needed to attend a drug assessment the following day, but she failed to appear.

On April 16, 2009, the Division was granted custody of Tasha. The court found that Karen had a history of drug abuse, was consistently non-compliant with services, and could not provide stable housing for Tasha, thereby increasing Tasha's risk of neglect and abuse. Consequently, Tasha was placed in a non-relative resource home. Family reunification was the Division's goal at the time.

On April 28, 2009, Tasha's health was evaluated. She was in need of dental care, and was behind on receiving her immunizations. Her growth was abnormal and she was malnourished. She was suffering from bronchial asthma, a seizure disorder, and developmental delays. She needed regular treatment with a pediatric neurologist and a speech therapist.

On May 20, 2009, the court ordered the continued care and custody of Tasha with the Division. Karen was directed to attend substance abuse evaluations, submit to random urine screenings, and ordered to participate in parenting skills classes.

On July 29, 2009, the court held that the Division had proven by clear and convincing evidence that defendants had abused and neglected Tasha. Karen had failed to complete drug treatment and neglected to present a parenting plan. She had not complied with the Division's required services since April 2009 and had not located stable housing. George, who was still incarcerated in New York, was obviously unable to care for Tasha. George was required to contact the Division as soon as he was released so that supervised visitation could be arranged. The Division was granted the continued care and custody of Tasha.

In August 2009, Karen participated in a substance abuse assessment and tested positive for cocaine. The assessment revealed that she suffered from cocaine, alcohol, and opiate dependence. Karen informed her evaluator that she had been abusing alcohol for twenty years, cocaine for ten years, and heroin for nine years. She was unemployed and not looking for work. As a result of her evaluation, Karen was referred to an intensive outpatient drug treatment program. Subsequent to her substance abuse evaluation, Karen had only sporadic contact with the Division. On more than one occasion, the Division offered her visitation with Tasha, but Karen repeatedly declined.

Around the same time, George underwent a psychological evaluation with Dr. Denise M. Williams Johnson, Ph.D. He told Dr. Johnson that he and Karen were in a relationship from 1996 until 2009 and that he had abused heroin for more than thirty years, that he knew Karen lived a transient life-style, that both Karen and Tasha had been living in an abandoned building, and that Karen abused drugs. Nevertheless, George felt that it was appropriate for Karen to have unsupervised access to Tasha because "she would not hurt the kid."

Dr. Johnson had concerns regarding George's ability to parent Tasha, especially in light of his 1995 New York conviction for the attempted rape of a minor. Following that conviction, George never attended sex offender therapy or any other form of counseling following his conviction. Dr. Johnson opined that George had no insight into the harm that could befall Tasha and recommended that George attend individual therapy, participate in regular drug testing, and enroll in parenting classes. She also recommended that George enroll in formal sex offender treatment, but only after taking responsibility for having assaulted a minor. Any visits with Tasha should be supervised, and George should be forbidden to have any physical contact with Tasha. Overall, Dr. Johnson determined that George was unreliable, that he had problems living a responsible lifestyle, and that Tasha would be unsafe in his unsupervised presence.

In September 2009, Karen was again terminated from a drug treatment program because of non-compliance and failure to contact her counselor. In October 2009, Tasha's resource family -- her paternal aunt and uncle -- informed the Division that they did not intend to provide long-term care for Tasha.

On October 14, 2009, the court held a case management conference. At the time, George tested positive for morphine. Karen was ordered to attend a psychological evaluation, drug treatment, and parenting skill classes, and was told to locate employment and find stable housing. George was ordered to attend psychosexual therapy and parenting skills classes in addition to submitting to drug screenings and releasing his criminal record to the Division. The court further ordered Tasha's continued care and custody to remain with the Division.

On October 29, 2009, George was referred for a substance abuse evaluation, which he failed to attend. George was also referred to individual and group therapy. He also began attending supervised visitation with Tasha.

In January 2010, the court ordered George to submit to a drug screening, attend parenting classes, and comply with other Division requirements. Karen was ordered to make herself available to participate in the Division's services. The court permitted supervised visitation, and throughout January ...


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