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

December 12, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FG-05-17-10.

Per curiam.



Submitted October 11, 2012

Before Judges Fuentes, Ashrafi and Hayden.

Defendant E.S. appeals from the May 12, 2011 Family Part judgment of guardianship, terminating his parental rights to his child W.S. and awarding guardianship to the New Jersey Division of Youth and Family Services (the Division). E.S. contends that the Division did not demonstrate by clear and convincing evidence three of the four prongs of N.J.S.A. 30:4C-15.1a. The law guardian supports termination and urges us to affirm the trial judge. Having reviewed the record in light of the contentions of the parties and the applicable law, we affirm.

The record shows that E.S. is the biological father and K.G. is the biological mother of W.S., who was born November 21, 2008. K.G. was a defendant in the guardianship proceeding but surrendered the child for adoption by the current resource parent and has not appealed the judgment of guardianship. E.S. and K.G. have another child, M.S., born January 1, 1995.

The Division initially became involved with this family in February 2008, when the police found the parents wandering in a confused state around a marsh area and took them both to the hospital. After viewing the disorganized conditions in defendants' home when they went to check on M.S., the police alerted the Division. During a subsequent investigation, the Division discovered that both parents were in methadone maintenance programs and both also were taking opiate and other mood-altering prescription medications. The parents' drug treatment program reported that defendants had been discharged from the program for continuing to test positive for other prohibited substances in addition to methadone. The Division did not find that the parents had abused or neglected M.S. at that time.

In March 2008, K.G. was arrested for taking a purse in a diner while accompanied by E.S. and M.S. The police charged both parents with endangering the welfare of a child. The Division executed an emergency removal of M.S. because the parents were incarcerated and no one was able to care for the child. The trial judge subsequently approved the removal, awarded the Division custody and ordered the parents to have psychiatric and substance abuse evaluations.

In April 2008, E.S. overdosed on a combination of Xanax, Percocet and methadone, and was involuntarily committed to the psychiatric ward. He had previously been involuntarily committed in October 2007. During the course of this litigation, E.S. had treatment for reported overdoses in June, July and October 2009. E.S. declined to participate in services the Division provided because he was moving to Philadelphia to live with his mother.

In August 2008, E.S. had a substance abuse evaluation, which produced a recommendation that he attend an intensive outpatient program with medication management. E.S. began the program but was soon discharged for attending group sessions in an intoxicated state. In September 2008, E.S.'s mother obtained custody of M.S. and the judge dismissed the child protection litigation.

When W.S. was born on November 21, 2008, he had mild tremors and appeared to be suffering from withdrawal symptoms. After filing a complaint alleging abuse and neglect in Family Part, the Division obtained an order of custody and placed W.S. in a specialized resource home for medically fragile children. The Division asked the parents for the names of any relatives or friends with whom to place the child. The few named relatives either declined or were determined to be ineligible. On July 29, 2009, when W.S. was no longer considered medically fragile, he was placed in the resource home of K.M., who has cared for him since and wishes to adopt him.

After E.S.'s removal, the judge ordered the Division to provide services and ordered the parents to participate in them.

The Division set up visitation but the parents were inconsistent, going for months at a time without a visit. Even when they had confirmed the visitation, they failed to attend due to illness, car problems, inclement weather, and general emergencies. At times, E.S. appeared at scheduled visitations incoherent and seemingly under the influence of a mind-altering substance. When E.S. reported that he was living in ...

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