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New Jersey Division of Youth and Family Services v. J.V. and E.A.G

November 15, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0169-10.

Per curiam.



Submitted September 25, 2012

Before Judges Yannotti, Harris and Hoffman.

In these consolidated appeals, defendants J.V. and E.A.G., appeal the May 4, 2011 judgment of guardianship entered by the Family Part terminating their parental rights to their then two-year-old son, J.A.V.-G. Both parents contend that plaintiff New Jersey Division of Youth and Family Services (the Division)*fn1

failed to prove by clear and convincing evidence the requisite statutory factors to establish that J.A.V.-G.'s best interests would be served by terminating their parental rights. The Law Guardian for J.A.V.-G. supports the termination of defendants' parental rights.

In his oral opinion, Judge Gary J. Furnari addressed the standards governing termination of parental rights, N.J.S.A. 30:4C-15.1(a)(1) to (4), as well as pertinent case law, and concluded the Division had proven its case by clear and convincing evidence. After careful review of the trial record, we conclude the trial judge's decision is soundly based on substantial credible evidence of record, and, therefore, should not be disturbed on appeal. Accordingly, we affirm.


J.A.V.-G. was born in March 2009, to unmarried parents E.A.G. and J.V. By then, the couple's parental rights to their son X.V., born in 2006, had already been terminated, and he had been adopted. They were also the parents of K.V., who was eight years old at the time of trial, and living with a maternal aunt. In November 2010, the couple had their fourth child together, R.V., who is in the custody of the Division.

J.A.V.-G. has a sensory integration disorder that causes him to bang his head and pull his hair, requiring him to wear a helmet. He receives developmental intervention and speech therapy weekly, and occupational therapy bi-weekly.

Each parent has an extensive history of substance abuse. On the date of X.V.'s birth in December 2006, both infant and mother tested positive for opiates. E.A.G. admitted using drugs during her pregnancy up until the day before X.V.'s birth. During an evaluation, J.V. admitted using heroin and to having been arrested five times "for drugs." J.V. was in prison from 1996-1999 for receiving stolen property. He entered a drug treatment program in January 2007, but left in February 2007.

On the day J.A.V.-G. was born, the Division received a referral from the hospital advising that he and his mother had tested positive for methadone. The Division obtained legal custody of J.A.V.-G. on April 1, 2009. J.A.V.-G. remained in the hospital for nearly seven weeks. Upon discharge, he was placed with the same couple who adopted his brother X.V. J.A.V.-G. remained in this home at the time of trial and the foster parents want to adopt him.

Shortly after J.A.V.-G.'s birth, J.V. suffered a stroke, which left him confined to a wheelchair. E.A.G. became his sole caretaker and said she could not leave him unattended. The Division determined it would not provide services to help E.A.G. care for J.V.

In November 2010, E.A.G. gave birth to R.V. who weighed just over three pounds and tested positive for methadone. E.A.G. admitted that she had been using street methadone during this pregnancy, and had not received any pre-natal care. R.V. was removed by the Division and, with the approval of the court, placed in the same home as X.V. and J.A.V.-G.

During the litigation, the Division offered the parents supervised visitation for ninety minutes each week, and provided bus cards for their transportation. Out of forty-four visitations offered, the parents attended nineteen and were often late when they did attend. Defendants blamed the bus service in their area for their poor attendance.

Before his stroke, J.V. was admitted to the Lennard Clinic in August 2008 for methadone treatment to eliminate his craving for opiates. He tested positive for opiates and methadone in September, October, November, and December 2008. He attended the clinic seven days a week through the time of his stroke. After the stroke, he attended the clinic two days a week. He remained in treatment at the time of trial.

E.A.G. also enrolled in the Lennard Clinic in August 2008, but the clinic placed her on involuntary withdrawal in July 2009 for nonpayment of fees. The Lennard Clinic did not have a contract with the Division, so the costs were not covered.

E.A.G. said she could not afford to pay the fees for both herself and J.V. E.A.G. was readmitted to the Lennard Clinic for methadone treatment in January 2010, after she tested positive for cocaine, opiates and methadone; however, she continued to struggle with substance abuse and had poor attendance. On March 26, 2010, E.A.G. left the clinic against medical advice. At the time of trial, she was not in treatment.

The Division referred both E.A.G. and J.V. for substance abuse evaluations at least seven times. E.A.G. attended an evaluation with Catholic Charities in April 2009. The evaluator recommended that she continue treatment at the Lennard Clinic and attend an intensive outpatient program at the Newark Renaissance House Woman's Program. Although the Division referred E.A.G. to the Renaissance House program, she stopped attending after three sessions and was dismissed in July 2009. When Catholic Charities reevaluated E.A.G. in January 2010, she admitted she continued to use heroin until February 2009.

J.V. attended a substance abuse evaluation on May 4, 2009. The evaluator recommended that J.V. continue at the Lennard Clinic and also attend Family Connections' Strong Fathers program. Although the Division referred him to the Family Connections Program, he did not attend due to his medical condition.

At the request of the Division, psychologist Antonio W. Burr, Ph.D. completed psychological evaluations of defendants as well as comparative bonding evaluations of J.A.V.-G. with defendants, and J.A.V.-G. with his foster parents. The evaluations were completed in September and October 2010. At trial, Dr. Burr testified that psychological testing of E.A.G. showed no organic brain dysfunction and indicated that her intellectual capabilities were in the low-average range. Dr. Burr could not formally score E.A.G.'s Rorschach psychodiagnostic test due to "card rejection," meaning she could not answer at all. According to Dr. Burr, this was a significant finding, as it pointed to her inability to handle unfamiliar stimuli. From this, Dr. Burr concluded that although E.A.G. could think concretely, she was unable to manage more complex or ambiguous problems that arose in daily life. The responses she did give were vague and simple, which also suggested limited problem-solving abilities.

Dr. Burr testified that psychological testing of J.V. showed no sign of neurological brain dysfunction, and an average range of intelligence; however, his problem-solving abilities and coping skills were inadequate to meet most demands of daily life. Dr. Burr said J.V. functioned "at a low, if not marginal level of adaptiveness and adjustment," his insight was "quite limited and superficial," and his judgment was "quite poor, subject to immature, impulsive, and anti-social elements in his personality," and he "engaged in a pervasive pattern of disregard for the rights and well being of others".

Dr. Burr noted that in a typical methadone program, methadone amounts are decreased over time until the body is rid of its craving, but in J.V.'s case, his dosages had increased from 2008 to 2011. Dr. Burr concluded that J.V. was "incapable of taking effective responsibility for the care or protection of any child under his care," ...

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