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New Jersey Division of Youth & Family Services v. M.W.

Superior Court of New Jersey, Appellate Division

May 23, 2013

M.W., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF B.M.A.W., a minor


Submitted May 1, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-112-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the briefs).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor B.M.A.W. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

Before Judges Koblitz and Accurso.


Defendant M.W., the biological father of B.M.A.W. (Bonnie), [2] appeals from the May 31, 2012 termination of his parental rights to the child. On appeal, M.W. contends that the judge erred by permitting the New Jersey Division of Youth and Family Services (Division) to continue Bonnie's placement with her resource mother rather than accept his preferred placement of Bonnie with her paternal grandmother.[3] The Division and Bonnie's Law Guardian urge us to affirm the judgment. We agree and affirm.

Bonnie was born in January 2009. Her mother, Q.R., tested positive for phencyclidine (angel dust) when Bonnie was born. As a baby, Bonnie was diagnosed with chronic asthma, eczema and antibiotic-resistant staph infections. She was removed from Q.R. for the first time at the age of three months. Q.R. was involved with the Division as a child and was diagnosed with bipolar disorder and chemical dependence. She receives Social Security Disability payments. She was unable to complete services provided by the Division in spite of many attempts. Bonnie was removed and then returned to Q.R. on multiple occasions.

Bonnie was placed with her paternal grandmother for three days in August 2009, until the grandmother asked for her to be removed because Q.R. was harassing the grandmother. Later in 2009, the Division contacted the grandmother for placement. She said she was unable to take Bonnie because she was caring for two extremely sick relatives. The grandmother testified that she did not contact the Division about Bonnie between August 2009 and January 2011 because she thought the baby was living with Q.R. The grandmother did not see Bonnie during this time. The grandmother, who cares for two children the Division placed in her care, has had positive, supervised visits with Bonnie since the middle of April 2011.

The visitation reports indicated that they have a positive relationship. The visitation supervisor noted one occasion when Bonnie came to the visit dirty, wet and smelly, although generally Bonnie appeared well-dressed and well-groomed. On several occasions Bonnie attended visits with minor injuries.[4]

In March 2010, at the request of Q.R., Bonnie was placed with her current resource mother. The resource mother is the biological mother of a four-year-old boy whose father is Q.R.'s brother. Q.R. made an identified surrender to the resource mother in July 2011, [5] although in March 2012, Q.R. told the judge that she no longer wanted her daughter to stay in that home. At the time of the termination decision, Bonnie had been with the resource mother for more than two years, with the exception of one brief, unsuccessful return to Q.R. in September to October 2010. Several referrals to the Division against the resource mother, of smoking cigarettes, domestic violence and smoking marijuana, apparently lodged by Q.R., were investigated by the Division and determined to be unfounded. Q.R. admitted making false referrals to the Division because she was not allowed to visit Bonnie.

Dr. Peter DeNigris, an expert in the field of clinical psychology, who was called by the Division, was the only expert to testify at trial. Dr. DeNigris testified that Bonnie was forming a bond with her resource mother. He said that Bonnie's ability to bond in the critical first three years of her life had been negatively impacted by her many placements. Dr. DeNigris also testified that Bonnie lacked the resilience to withstand another failed placement, and that removal from her resource mother would harm the child.[6] He found that the resource mother was Bonnie's "psychological parent" and confirmed that Bonnie "called the current caretaker momma during" the bonding evaluation. He also opined, in response to hypothetical questions, that Bonnie was unlikely to have formed a bond with her ...

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