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New Jersey Division of Youth and Family Services v. R.E.D.

Superior Court of New Jersey, Appellate Division

June 17, 2013

R.E.D., Defendant-Appellant. IN THE MATTER OF A.F.D., a minor.


Submitted May 28, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket Nos. FG-04-173-11 and FN-04-435-09.

Joseph E. Krakora, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; James D. Harris, Deputy Attorney General, on the brief).

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

Before Judges Parrillo, Sabatino and Fasciale.


In these consolidated matters arising out of litigation brought against a mother by the Division of Youth and Family Services ("the Division"), [1] defendant R.E.D. ("the mother") appeals respective orders entered by the Family Part on January 13, 2012 and February 2, 2012. The January 13, 2012 order, which followed several testimonial hearings, granted physical custody of the mother's minor son, A.F.D., to the son's father, J.F. The subsequent February 2, 2012 order terminated the present litigation, which the Division had brought under "FN" (abuse-and-neglect) and "FG" (guardianship) dockets, and granted J.F. legal custody of A.F.D. That order was expressly made subject to the mother's right to litigate custody and parenting time issues against the father, without the Division's involvement, in future proceedings under a separate and preexisting non-dissolution ("FD") docket in the Family Part.

On appeal, the mother now presents several arguments, including her central theme that the trial court's orders, in effect, have essentially and unfairly "terminated" her parental rights. We reject the mother's contentions and affirm.


We derive the following pertinent facts and procedural history from the extensive record. In large measure, the record depicts the mother's long history of drug abuse and her sustained failures to carry out her parental responsibilities to A.F.D., who was born on February 4, 2000, and to his younger sibling, D.D., who was born on June 15, 2005. The record also reflects the positive relationship that A.F.D. rapidly developed with his father, J.F., once J.F. had been located, and J.F.'s credible efforts to become a fit and stable parent after he was released from incarceration.


The present litigation first arose from an incident at a motel in Maple Shade on March 21, 2009, where A.F.D., who was then nine years old, and D.D. were discovered by police alone in a rented room.[2] A.F.D.'s school had reported to police that he was not attending class. The mother returned to the motel within an hour and forty minutes, after being informed by police that the children were in the motel room alone. She had apparently been out grocery shopping. She was nine months pregnant at the time with the child of another man, M.B., and had not sought prenatal care. M.B. returned to the motel after the mother did, but he was then arrested on an outstanding warrant for shoplifting in Deptford. A.F.D. had, at that time, been out of school for two weeks because the family was homeless. Neither the mother nor M.B. was employed at the time.

The mother gave birth on April 9, 2009 to another child, M.D., at a hospital in Voorhees. She tested positive for opiates at the time of the birth. The mother stated that she was taking Percocet for chronic pain from a fractured pelvis in 2007. She gave the name and number of the doctor that allegedly had prescribed the Percocet, but ensuing investigation revealed that the doctor had not seen the mother since 2006 and had never prescribed the mother Percocet. In fact, it turned out that the mother had been secretly taking the Percocet tablets from M.B.'s father. M.D. tested positive for Oxycodone at birth and remained in the hospital until June 2, 2009.

The Division's Initial 2009 Order to Show Cause and Placement of A.F.D. With S.B. and L.B.

On April 30, 2009, the mother appeared before the Family Part in response to an order to show cause filed by the Division under both Title 9 and Title 30.[3] The judge hearing that initial application found that the Division had met its prima facie burden of showing abuse and neglect of the children. The judge ordered that the children be placed temporarily in the care, custody, and supervision of the Division. The judge also ordered the mother and M.B. to attend and complete a substance abuse evaluation and any recommended treatment. Around this same time, A.F.D. and D.D. began staying with M.B.'s parents, S.B. (the paternal grandfather of M.D.) and L.B. (the paternal grandmother of M.D.), who were acting as kinship providers.

On May 8, 2009, the Division filed an amended verified complaint under Title 9 and Title 30, requesting an order granting the Division custody of the children. Thereafter, the parties appeared before the Hon. Octavia Melendez, J.S.C., on May 13, 2009. The mother tested positive for morphine that day. Neither she nor M.B. had attended their court-ordered substance evaluations. The young son, A.F.D., wrote a letter, which was read aloud in court that day, expressing his happiness about living with S.B. and L.B. Given these circumstances, Judge Melendez ordered that the children remain in the custody, care, and supervision of the Division, but did grant the mother and M.B. visitation rights. M.D. began staying with S.B. and L.B., along with A.F.D., after his release from the hospital on June 2, 2009.

On July 9, 2009, the parties again appeared before Judge Melendez. By that point, M.H., the children's maternal grandmother, had filed an application for custody, as had M.B.[4]That day, the judge granted M.H. the right to visit the children and ordered the Division to arrange a study of M.H.'s home. The judge continued the children in the care, custody, and supervision of the Division. The mother did not attend the hearing.

On July 27, 2009, the parties appeared before a different Family Part judge, Hon. Lee B. Laskin, J.S.C.[5] Instead of demanding a trial on the abuse and neglect allegations, the mother stipulated that she took drugs while pregnant with M.D., and that her drug use had put all of her children, including A.F.D., at a risk of harm. M.B., meanwhile, stipulated that he failed to maintain appropriate housing for the children and specifically had failed to send A.F.D. to school, placing the children at risk of harm.

Judge Laskin issued an order that day reflecting these stipulations. He also issued a separate order, continuing the children's custody, care, and supervision with the Division, and allowing the children to remain at the home of S.B. and L.B. Judge Laskin further ordered the mother and M.B. to undergo psychological and substance abuse evaluations, to attend counseling recommended by the Division, and to attend parenting skills training. The parents were allowed weekly supervised visitation, as was M.H.

The Compliance Review and Permanency Hearings in 2009 and 2010.

On November 12, 2009, a compliance review was held by the court, at which time the court did not make any changes to the children's living arrangements. The mother tested positive for morphine that day.

About three months later, another compliance review was held before Judge Melendez on February 2, 2010. The attorney representing the Division informed the court that the mother had been attending a detoxification program. Also at that hearing, S.B. and L.B. withdrew their applications for custody, although their attorney made it clear that they may seek to adopt the children if the situation so warranted. Judge Melendez also dismissed M.H.'s complaint for custody. The judge continued the children's living arrangements and the related visitation rights. In addition, Judge Melendez made a negative inference against the mother, determining that, because the mother had failed to provide a sufficient urine sample for screening, she would have tested positive for drugs if a proper sample had been given.

A permanency hearing was subsequently held before Judge Melendez on April 27, 2010. On that occasion, the Division presented a plan to terminate the parents' parental rights and have M.H. ultimately adopt the children by April 2011. The Division caseworker represented that the interstate assessment of M.H.'s home had been completed and that she had been approved. The Law Guardian representing the children argued, in opposition, that it made little sense then to move the children to M.H.'s home, because the children were happy with their current situation with S.B. and L.B.

Upon considering these competing positions, Judge Melendez issued an order rejecting the plan by the Division to terminate parental rights and allow M.H. to adopt the children. The judge specifically noted at the hearing that she found that plan to be "inappropriate and unacceptable." In a separate order that day, Judge Melendez instead continued the children's living arrangements with S.B. and L.B.

The parties returned on May 26, 2010 for another permanency hearing before Judge Melendez. At that time, the Division presented a new plan, whereby defendants' parental rights would be terminated and S.B. and L.B. would adopt the children. Neither the mother nor M.B. at that point had completed their required substance abuse programs, due to nonpayment. They also had not completed their parenting skills classes. The ...

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