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New Jersey Division of Youth and Family Services,*Fn1 v. S.L.K

November 26, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-88-11.

Per curiam.



Submitted October 15, 2012

Before Judges Graves, Espinosa and Guadagno.

Defendants, K.L.M. ("Keisha")*fn2 and S.L.K. ("Steve"), appeal from an order that terminated their parental rights to their son, K.L.K. ("Kip"), who was born on April 8, 2010. We affirm.

At the trial of this guardianship matter, the Division of Youth and Family Services (DYFS or the Division) relied upon the testimony of Rosalyn Moulton, who had been defendants' caseworker since December 2010, and a psychologist, Daniel Bromberg, Ph.D., as well as documentary evidence that was admitted without objection. Keisha testified on her own behalf. Steve presented no evidence. No experts were presented on behalf of either Keisha or Steve.

DYFS's involvement in this case was initiated when Keisha, pregnant with Kip, told a hospital social worker that she was unable to care for an infant independently. The social worker referred Keisha to DYFS and requested Child Welfare Services for her. In addition to Keisha's stated concern regarding her ability to care for her baby, due on April 12, 2010, the social worker reported that she was "developmentally delayed and cognitively impaired" and "not capable of caring for a newborn/child." Keisha did not expect to have any help caring for the new child from friends or family members and was living with the unborn baby's father, Steve, who is also developmentally delayed. Keisha also suffers from a seizure disorder but was not taking her prescribed medication consistently. Her failure to do so had resulted in her losing housing at the supervised setting where she had lived. Keisha had been referred to New Starts for parenting classes, but was not attending with sufficient frequency. The DYFS worker who followed up on this referral stated that Keisha "did not appear to be as 'slow' as initially reported[,]" and further reported that Keisha said she stopped taking her seizure medication because it made her drowsy.

Neither Keisha nor Steve had custody of their other children. Keisha voluntarily surrendered her parental rights to her first child, S.M., in November 2000, when he was six years old. Steve has a sixteen-year-old daughter who resides with one of her maternal grandparents.

The second referral advised DYFS that Keisha had given birth to Kip. At this time, there were no concerns regarding substance abuse by Keisha and there were indications that, although cognitively impaired and suffering from a seizure disorder, Keisha had been "appropriate while caring for the child" in the hospital.

Home health aide services began on April 20, 2010. During this time, the health aide visited the family for four-hour periods five days per week. The aide suggested the parents might need parenting skills services and noted that on some days Kip was in soiled clothes and had not been cleaned. However, the reports were favorable overall.

On April 26, 2010, a DYFS worker was sent to defendants' home to check on the family. The worker reported that Keisha "appeared to be appropriately caring for her newborn" and that "the newborn did not appear to be in any discomfort." The worker also noted that the apartment had working utilities and that defendants had a sufficient supply of formula for the baby.

During the April 26 visit, the worker informed defendants they were scheduled to have psychological evaluations in May and that DYFS would provide transportation for them. Steve told the worker they would both be available. Defendants signed a case plan, which stated that DYFS would be providing home health aide services.

The third referral to DYFS was made on May 11, 2010 by an anonymous reporter who claimed that an infant in defendants' apartment was crying for hours at a time and that the father yells at the baby to "shut up." The reporter stated that the baby's cries then become louder, as if in response to being hit. A DYFS worker and supervisor went to defendants' home to investigate on May 13, 2010. Both defendants denied the allegations in the report, as well as any instances of domestic violence.

During this visit, the DYFS worker and supervisor observed an incident in which Steve manifested a failure to understand how to properly handle a baby. After Keisha handed Kip to him, Steve held the baby by his buttocks and had to be instructed several times on the proper way to hold the baby and support his head. Keisha had to be reminded to schedule a follow-up appointment for the baby. The worker created a "Safety Protection Plan," which prohibited Keisha from leaving the child home alone with Steve. Both defendants agreed and signed the plan.

Keisha also stated that she had not been to her parenting classes in a few weeks because she did not have enough money to purchase a bus card to get there. The worker observed the couple to be very limited in the things they are capable of doing while carry [sic] the baby and caring for him in general. Although . . . the couple is limited they cared for the child in a loving manner. The baby was dressed appropriately, and was clean. There was plenty of formula in the home for the baby and the baby's sleeping arrangements were appropriate. The apartment overall was clean and all utilities were working.

On May 14, 2010, DYFS transported defendants to their scheduled psychological evaluations with Bessie Duncan, Ph.D.

On May 20, 2010, the DYFS worker called defendants' home and spoke with Steve, who informed her that Keisha was not home. The worker spoke to the parent aide, who stated she did not realize Keisha was not home because on other occasions Keisha did not come out of her bedroom with the child until two hours into the aide's shift. The worker told the aide that this was unacceptable, as Keisha and Steve need to be taught how to parent. On the same date, DYFS referred Steve to parenting skills services.

On May 24, 2010, the worker again visited defendants' home. Keisha told the worker that the parent aide had been coming to the home, that she resumed going to parenting classes, and that she took Kip for his follow-up examination.

Dr. Duncan issued her reports on Keisha and Steve in June 2010. With respect to Keisha, Dr. Duncan stated:

[Keisha] loves her child. Her capabilities seem adequate but she is unable to care for him long term without complete assistance from DYFS in the home, with parenting classes, regular daily assistance, periodic evaluations and checkups for the entire family, monitoring of her behavior and general supportive counseling. As the child matures there is [a] strong question as to [Keisha's] ability to handle the complexities of an older child's needs. Without the guidance and support of DYFS [Keisha] would not be able to care for her son. With support there would be major difficulties as the child grew up. Unless DYFS can arrange such assistance she would not be able to parent.

Dr. Duncan also concluded that although

[Steve] loves his son[, he] is not capable of parenting without major assistance. He is not able to care for him with the emotional and psychological pressures parenting demands. . . . His temperamental issues and deficiencies, which can cause outbursts, strong reactive behavior, along with his intellectual weakness suggest that the child be placed.

Dr. Duncan's ultimate conclusion was that defendants would require constant DYFS supervision in order to retain custody of Kip, and if DYFS could not provide such constant supervision, the child would be better off placed outside defendants' home.

Following this recommendation, the DYFS worker called defendants' home on June 11, 2010, and was informed by Steve that neither Keisha nor the parent aide were in the home, and that he was alone with the baby in violation of the safety plan. When the worker followed up two hours later, Keisha still had not returned home. Approximately six hours after the initial call, DYFS workers visited the apartment, and Keisha was still not there. It was determined that an emergency removal of Kip pursuant to N.J.S.A. 9:6-8.29 and 9:6-8.30, was necessary. Keisha returned to the apartment an hour and a half after the DYFS workers' arrival, after Steve called to tell her DYFS was there to remove the baby. The workers explained to defendants that they were taking the baby because Steve had been left alone with the child for a very long period of time in violation of the safety plan. They also explained the conclusions in Dr. Duncan's reports and advised them that DYFS was unable to provide the level of service defendants needed.

On June 15, 2010, DYFS initiated protective custody litigation by filing an order to show cause and to appoint a Law Guardian with temporary custody. The trial judge granted DYFS custody of Kip and he was placed in a foster home. He was approximately ten weeks old at the time he was removed from defendants' custody.

At the time Kip was removed, the Division's concerns regarding Keisha were that she had cognitive impairment, that she lacked an ability to independently care for Kip long-term, and that she abused drugs. Although he did not abuse drugs, Steve also had severe cognitive impairment. He also had a low tolerance for frustration that manifested itself ...

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