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New Jersey Division of Youth and Family Services v. K.S.C

December 14, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-26-10.

Per curiam.



Submitted November 5, 2012

Before Judges Parrillo and Maven.

Defendant Karen*fn1 appeals from a judgment of the Family Part terminating her parental rights to her child, Jane, born in May 2004, and granting guardianship of the child to plaintiff Division of Youth and Family Services (Division).*fn2 On appeal, defendant asserts that the Division failed to prove the four prongs of the best interests test by clear and convincing evidence. Because the trial court's decision is adequately supported by substantial credible evidence in the record, we affirm.

These are the relevant facts adduced from the record. This family first came to the attention of the Division in May 2007, when they received a referral reporting that three-year-old Jane was unconscious due to ingesting a pill she had picked up off the floor. At that time, the child lived with her parents, grandmother and uncle. After an investigation in September 2007, the Division did not substantiate any abuse or neglect; however, the agency kept the case open for services regarding the child's developmental needs. The Division noted that the child could not speak well, suffered from hearing problems, was not toilet trained and still used a pacifier.

In March 2008, the Division received a referral from defendant's physician, Dr. Stephen Padnes, who out of concern for Jane reported that defendant may be addicted to prescribed medications, selling her medications, and possibly "doctor and prescription shopping." Dr. Padnes informed the Division that he contacted her insurance company requesting that she be limited to obtaining medications from one doctor and one pharmacy. Although defendant and her husband denied the allegations, the Division opened a case in order to provide the family with services.

As part of the initial review, defendant completed a substance abuse evaluation with the Center for Family Services (CFS) in March 2008 wherein she disclosed that she was taking forty milligrams of Oxycontin three times daily, twenty milligrams of Oxycontin three times a day, ten milligrams of Ambien each day, one milligram of Klonopin four times daily, thirty milligrams of Roxicet as needed and Ibuprofen.*fn3 The results of multiple drug tests revealed that defendant tested positive for various drugs, including opiates and benzodiazepines.*fn4 Based on these results, CFS diagnosed defendant with Opioid Dependence and recommended defendant enter a rehabilitation facility. She, however, refused treatment that day and again in June 2008.

Also in June 2008, Division consultant, Dr. Mariann Pokalo, Ph.D., conducted a psychological evaluation and recommended that defendant participate in a parenting course and begin a pain management program. Another consulting psychiatrist, Edward Baruch, M.D., conducted an evaluation and diagnosed defendant with Cognitive Deficits induced by Opiate Abuse. Dr. Baruch recommended residential substance abuse treatment. Dr. Baruch also stated that defendant could not care for Jane at that time and recommended the child's removal.*fn5

On several occasions, the Division recommended to Karen that the child be evaluated to assess the child's speech deficiencies. After assuring that she would take Jane, defendant failed to appear for the appointment.

In July 2008, defendant was referred to Dr. Frederick L. Cole, Jr., an orthopedic physician, to assess the extent of defendant's back injury and her need for medication. Dr. Cole reviewed an MRI from May 2003 taken shortly after her injury and concluded that there was no evidence of extensive herniation, degenerative changes or chronic instability in the lumbar spine to warrant the type of medication she was taking. Although a 2008 MRI showed a possible bulging of the spinal disk, Dr. Cole opined that the amount of pain medication defendant was taking was not warranted based on her physical condition. In his October 2008 report to the Division, he stated that given his clinical examination, including the review of her MRIs, he declined to fill Karen's request for additional pain medication. Rather, he referred her to a pain management center.

Based upon the consultants' concerns regarding prescription drug usage, Karen's refusal to attend a substance abuse treatment program, and her failure to attend to the child's needs, the Division filed a complaint requesting care and supervision of Jane on October 28, 2008.*fn6 On February 9, 2009, defendant stipulated to neglect, as defined in Title Nine,*fn7 acknowledging that her medication needed to be managed so that she could properly parent her child. The trial court ordered Karen to attend medically managed detoxification followed by residential substance abuse treatment. She was also ordered to attend parenting classes, psychiatric treatment and medication monitoring.

When doctors informed Karen that they would no longer prescribe her narcotics, she began treatment with Dr. Greg Taylor of Cooper Medical Center in December 2008. In February 2009, Dr. Taylor reported to the Division that he modified Karen's medications to sixty milligrams of Oxycontin for back pain, Cyclopenzaprine, a muscle relaxant, and Klonopin, for anxiety. By July 2009, Dr. Taylor reported that her pain medication was reduced from sixty milligrams of Oxycontin twice a day to forty milligrams twice a day. He further opined that Karen had an objective medical reason for her complaint of pain; has taken the prescribed medication appropriately; and the prescribed medication did not render her unable to parent Jane nor placed the child at risk. In November 2009, Dr. Taylor wrote another letter confirming the medication level and reporting that Karen was stable on her current medication and compliant with her scheduled office visits.

Independent of her treatment with Dr. Taylor, Karen was referred to psychological evaluations. In September 2009, she met with psychologist, Meryl E. Udell, PhD., who was asked by the Division to give on overall assessment of Karen and identify any unmet service needs. Dr. Udell, ultimately recommended that: (a) Jane not be returned to Karen because Karen was not aware of her daughter's developmental needs; (b) Karen should participate in counseling to address her unsupported belief that she has a broken back; (c) Karen should attend substance abuse and pain management treatment and receive ongoing drug testing; and (d) supervised visitation should continue. Future evaluations completed by other clinicians would be largely consistent with these recommendations.

Regarding placement, Susanna Dias, Division caseworker, evaluated the family extensively. She made three separate placements. The initial placement, from October 2008 until May 2009, ended when that foster parent reported that she could no longer control Jane's behavioral problems. A second placement was made from May 2009 to July 2010 with the child's paternal ...

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