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New Jersey Division of Youth and Family Services,*Fn1 v. H.H.M

November 27, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-118-10.

Per curiam.



Submitted September 25, 2012

Before Judges Fisher, Alvarez and St. John.

Defendants H.H.M. (Hank*fn2 ) and T.C.B. (Tara) appeal the February 23, 2011, Family Part judgment terminating their parental rights to M.A.M. (Mary), born October 29, 1997, and N.H.M. (Ned), born October 31, 2002, pursuant to N.J.S.A. 30:4C-15(c) and -15.1.*fn3 For the reasons that follow, we affirm as to Ned, but remand for additional proceedings as to Mary only as to Tara's parental rights.

Care, custody, and supervision of Mary and Ned was granted to the Division of Youth and Family Services (the Division) on March 18, 2009. The children first came to the Division's attention on June 10, 2006, when Hank kicked Mary in the head, resulting in the child's hospitalization. Hank entered a guilty plea to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and on December 15, 2006, was sentenced to five years probation.

During the Division's investigation, Tara reported that she and Hank had problems with domestic violence, and that she had substance abuse difficulties. She admitted the use of marijuana to her Division worker and consistently tested positive for PCP from April to June 2007, sporadically participating in substance abuse treatment. Tara was discharged from one program for nonattendance, and although she enrolled in treatment at a second facility, she refused to submit to mental health assessments or engage in mental health treatment. She did complete one substance abuse program in 2008.

On May 2, 2008, the Division investigated an allegation that Hank and Tara were using PCP in front of the children, and caring for them while under the influence. At that juncture, although Tara denied that Hank resided in her home with the children, as he was prohibited from doing so as a continued condition of her care and custody, she acknowledged that he came to the house daily, gave the family money, and brought food.

In June 2008, the Division provided rental assistance to Tara as she was two months behind in her rent and facing eviction. The Division paid the full amount directly to her landlord; however, in September Tara again requested rental assistance and was referred to the Homeless Prevention Program. The Division continued to have concerns regarding Hank's involvement with the family since Tara continued to allow him in the home, despite the fact he had failed to complete mandated services. Nonetheless, the Division closed the file in November 2008.

On March 16, 2009, the Division received a referral that Tara was caring for the children while under the influence of "angel dust" and was cashing in her food stamps in order to purchase drugs. It was also suspected that Hank was residing in the family's home despite the Division's conditions and his failure to comply with the requirements of his probation. Tara in turn was suspected of committing fraud by maintaining electric and cell phone accounts in other peoples' names.

When the Division worker met with the family as a result of the referral, Tara denied drug use, denied that Hank resided in the home, admitted she was unemployed, and denied any knowledge of Hank's performance regarding his probation conditions. When Mary agreed that her father did not live in the home, Ned responded "yes he does, stop lying." Mary reported seeing her Hank smoke "[B]lack and [M]ild [C]igars," and that after he does, he acts "crazy." Ned confirmed this. Mary also expressed fear of her father because he threatens to "beat [her] up and curses," and her mother would not protect her.

During the interview, the Division worker observed Hank in the kitchen emptying tobacco from a cigar, where an unidentified female was seated and appeared to be "staring off" into space. The home had little food and a hole in the ceiling exposing water pipes and beams. A bucket filled with water was placed beneath the hole.

The Division removed the children, with police assistance, as the parents were minimally cooperative and appeared to be under the influence. The Division worker described Hank as "not coherent, his words [] slurred, and he kept closing his eyes . . . ." Because of his conduct during the removal, Hank had to be placed in the police car. Hank initially admitted that he was residing in the home but then denied it. The children were placed in foster care.

Tara's drug use continued unabated after the placement. The Division referred her to treatment agencies on at least four occasions, and, with one exception, she either did not complete the assessment process or the treatment program. When evaluated in March 2009, Tara admitted that her last use of alcohol was March 17, 2009, and of marijuana and PCP on March 16, 2009. The March 27, 2009 drug screen revealed that she continued to use both drugs. When the Division attempted to reenroll Tara in a substance abuse program in September 2009, she failed to appear for at least one evaluation and did not comply with treatment recommendations.

Because Hank's term of probation was revoked for non-compliance with conditions, on September 25, 2009, he was sentenced to four years imprisonment. His probation violations included testing positive on twelve occasions in 2008 through early 2009 for cocaine, morphine, PCP, marijuana, or benzodiazepine. Additionally, he failed to supply proof of the completion of a drug treatment or anger management program, to secure employment, or to report to his probation officer. Hank had been previously convicted of drug distribution within 1000 feet of school property, N.J.S.A. 2C:35-7, and third-degree resisting arrest, N.J.S.A. 2C:29-2(a).

Hank was not compliant with the drug treatment offered to him through the Division. He was referred to numerous programs, which he either did not begin at all or if he did, he did not complete.

Tara had been placed on probation for three years on a conviction of fourth-degree false incrimination, N.J.S.A. 2C:28-4(a), in November 2008, before the removal of the children. On September 25, 2009, she was resentenced to 364 days of county jail time on a violation of that probation. In his statement of reasons, the judge noted that Tara ...

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