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New Jersey Division of Youth & Family Services v. J.R.

Superior Court of New Jersey, Appellate Division

May 30, 2013

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
v.
J.R., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF R.R., A minor.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 9, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-77-11.

Christine Olexa Saginor, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Saginor, on the brief).

Martin B. Gandelman, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Gandelman, on the brief).

Todd Wilson, Designated Counsel, argued the cause for minor R.R. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief).

Before Judges Messano, Ostrer and Mantineo.

PER CURIAM

Defendant, J.R., appeals from the Family Part's order terminating his parental rights to his son, R.R. (Randy).[1] Defendant contends that the Division of Youth and Family Services (the Division) failed to prove by clear and convincing evidence all four prongs of the statutory best interests test, N.J.S.A. 30:4C-15.1a.[2]

We have considered the arguments in light of the record and applicable legal standards. We affirm.

I.

Defendant and F.C. (Fran) had been in a lengthy relationship prior to Randy's birth in June 2005.[3] Fran has six other children from previous relationships. At the time the Division commenced its action for care and supervision in June 2009, Fran had legal and physical custody of Randy and four of her other children: E.C. (Elaine), D.C. (Diana), B.R. (Beth), and D.F. (Daniel). M.F. (Melissa) was residing with her father, and D.C. (Dana) was living with her paternal grandfather.

Prior to Randy's birth, the Division received numerous referrals regarding Fran's actions toward her children. On July 15, 2005, a neighbor alleged that defendant's family "did not have food and that the home was disheveled."[4] Upon visiting the home, the worker "observed . . . insufficient food" and "garbage on the floor." The Division subsequently provided the family with "groceries and bedroom sheets, " and requested that defendant and Fran sign a case plan "agreeing that the children needed to have primary needs[, ] such as food, clean clothing, adequate shelter, and adequate supervision." The Division continued to monitor the family.

On September 28, the Division received a report that Randy "was diagnosed with a hernia." Because the family lacked health insurance, the child had not been taken to a follow-up medical appointment scheduled for August 30. After some difficulty, the Division located the family in Lodi living with defendant's father. Defendant and Fran signed another case plan requiring them to take Randy for a medical appointment upon receipt of their insurance benefits.

In October 2005, the Division received another report that the children were "dirty, hungry, and went to school with dirty clothes on." Investigation proved the allegation to be unsubstantiated. On October 11, all the children were taken to see a pediatrician, though an appointment with a second doctor to address Randy's hernia could not be made until November 23, 2005. Three days later, the doctor "reported that she had many concerns regarding the . . . family, " particularly "that [Randy] was at a high risk of [Sudden Infant Death Syndrome] because of people smoking in the home." On October 17, Fran reported to the Division that she had taken Randy to the hospital and that "there was nothing wrong with him."

Referrals by several of the children's caregivers regarding their hygiene continued into 2006, though none of the allegations were substantiated by the Division. On November 21, 2006, the Division learned from a school nurse that Elaine, who was "communication impaired and ha[d] mild asthma, " had suffered from "hygiene problems since September of [that] year." The school nurse reported that Elaine "d[id] not seem to be taking . . . shower[s], " "ha[d] an odor on her" and had "wor[n] the same clothes three days in a row." The nurse tried contacting defendant and Fran about the issue, but they never responded.

Further investigation revealed that defendant and Fran owed nearly two thousand dollars to the utility company, and electricity had been shut off to their apartment for nearly two weeks. Two Division workers went to the apartment and met with Fran and the children. Although "moderately clean, " the apartment smelled of cat urine, was inappropriately furnished and lacked electricity. Defendant and Fran signed another case plan in which they agreed to have Elaine see a therapist and not use candles to light the apartment.

On May 15, 2007, a Division worker met with Randy's daycare provider. Both Randy and his brother Daniel had "arrived at her home with a black eye one day apart from each other." Daniel reported being beaten by his sisters and locked in a closet. He claimed his parents slapped his hand, and Randy "was hit with a belt . . . because he was playing outside when it was dark." Workers spoke to Diana and Beth about these allegations, and while Diana claimed she accidentally kicked her brother in the face when removing her shoe, Beth claimed to be unaware of Daniel's injuries. No further action was taken.

The Division continued to monitor the family's situation through regular visits to the home in 2007 and 2008. It provided furniture, and household items and assisted in payment of the family's security deposit and rent.

On July 22, 2008, a Division worker visited the family and observed an overfilled garbage bag in the apartment hallway and "[cockroaches] going in and out of the ceiling tile and up the walls." The worker also observed Randy "jump[ing] off the kitchen chair and bump[ing] his head on the wall, " causing swelling on his forehead. The Division decided to keep the family's file open and continue monitoring the situation.

On September 4, the Division received another report after Garfield police were called in response to a physical altercation between Fran and Elaine. An ambulance took Elaine to the hospital after she complained of back pain. At the hospital, Fran left with Elaine because she did not want to wait, although she later returned with her daughter, who was provided with a neck brace. During the investigation, defendant told workers that Fran drank alcohol "on occasion" but was not intoxicated at the time of the altercation.

The Division referred the family for in-home counseling services. When it was discovered that Elaine and Diana had been cutting themselves, the family was referred for more "intense" services through Families First, as "issues between [Fran] and [defendant] were affecting the children." Fran was also asked to submit to a substance abuse evaluation.

The Families First counselor relayed concerns to defendant and Fran regarding the relationship between Diana, who was twelve at the time, and J.R. (John), defendant's brother, whom the children called "uncle." Defendant and Fran denied anything inappropriate was occurring.

In October 2008, Fran went to the Garfield Police Department to obtain a restraining order against John, claiming that "something of a sexual nature happened between [John] and her daughter [Diana]." Diana denied the allegation, and the Bergen County Prosecutor's Office conducted an investigation. Defendant told the Division worker that the children were very close to his brother, there was nothing inappropriate happening and he could not understand why Fran would make such accusations. Despite the issuance of a restraining order, the younger children reported that John continued to visit the home to see Diana and Elaine.

In March 2009, the Division received another referral regarding Fran's drinking. Workers interviewed defendant, Fran, John and the children. After initially denying her alcohol consumption was excessive, Fran acknowledged having "relapse[d]." Several of the children confirmed Fran drank on a daily basis, while home alone with Randy and while driving. Defendant, after initially telling the worker that he did not want to get involved, thanked her for conducting spot visits to the home and having Fran admit to her problem.

Diana, meanwhile, reported being the victim of a sexual assault several years earlier in Paterson. She claimed her mother knew the perpetrator. Fran admitted knowing who it was, and told the Division that she gave his name to John, who was going to handle it. The Division workers interviewed John at length. He denied engaging in any inappropriate behavior with Diana and reported that Fran was a member of the "Latin Queens" and drank on a daily basis around the children. John believed Diana and her sister Elaine had been "pimped out" to gang members by defendant and Fran. John admitted he intended to go to Paterson and "beat[] the man" who had sexually assaulted Diana; he decided against it, however, "after realizing it wouldn't do any good." No one reported the incident to law enforcement.

In April 2009, the Division substantiated allegations of neglect against Fran "based upon her alcohol use while supervising the children and her past history." Following another referral in May, Fran and defendant executed another case plan. They ...


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