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New Jersey Division of Youth and Family Services v. R.S.

Superior Court of New Jersey, Appellate Division

July 22, 2013

R.S., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF B.R.S., L.I.J.B., and J.A.I., Minors.


Submitted May 29, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-131-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eric Meehan, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor respondents (Margo E.K. Hirsch, Designated Counsel, on the brief).

Before Judges Alvarez and St. John.


R.S., the father of B.R.S., whom we will refer to as Bobby to preserve anonymity and for ease of reference, born in October 2004, and L.I.J.B., whom we will refer to as Larry, born in November 2009, appeals the May 11, 2012 termination of his parental rights. For the reasons that follow, we affirm.

We briefly summarize the procedural history in the matter as relevant to the issues decided on appeal. The children were born to R.S. and J.I., his wife, who does not appeal the judgment terminating her parental rights. The Division of Youth and Family Services (the Division) became involved with the family in 2003 when J.I. gave birth to a child who tested positive for marijuana. In September 2006, R.S.'s parental rights were terminated as to that child. Bobby was born while that action was pending. Another child, also born while those proceedings were pending, was adopted through a private agency.

The Division maintained an open file from 2006 to 2008 in order to provide services to the family. As a result of multiple referrals, on January 19, 2009, the Division removed Bobby on an emergent basis, N.J.S.A. 9:6-8.29, and filed a Title 9 complaint to gain custody of Bobby and the other children, who are not a part of this case, then living with J.I. On November 6, 2009, when Larry was born, the Division attempted but was unable to locate the mother and child. Eventually, on March 25, 2010, the Division accomplished a second Dodd removal, this time of Larry, and the pending abuse and neglect complaint was amended to include him. R.S. was absent throughout the abuse and neglect litigation — he could not be located, was not served, and did not appear. At a permanency hearing conducted on January 13, 2010, the court approved the Division's plan for termination of parental rights followed by adoption as to Bobby. Thereafter, the Division filed a guardianship proceeding naming Bobby together with another child of J.I. that was not R.S.'s child. On October 15, 2010, Larry was added to the guardianship litigation.

R.S. was eventually located and served in April 2010, and counsel appeared on his behalf on thirteen separate court dates from May 6, 2010, through October 11, 2011. R.S. appeared at only three of those hearings, on June 24, 2010, August 12, 2010, and September 16, 2010. Trial was conducted on three days in November 2011 and January 2012. The Division was granted guardianship of Bobby and Larry and this appeal followed.

J.I.'s lengthy history with the Division began shortly before the death in 1997 of one of her children, as a result of which she served a prison sentence for second-degree endangering the welfare of children, N.J.S.A. 2C:24-4(a).

R.S.'s involvement with the Division commenced in 2003, with the birth of the child born under the influence of marijuana. Starting in that year and continuing into 2006, the Division attempted to engage R.S. in services, including substance abuse treatment. R.S. was also referred to psychological evaluations, individual counseling, couples counseling, and parenting classes. He was offered supervised visits for Bobby, but refused them because the visits could not take place at his mother's house. It was during this time that his parental rights to a third child were terminated.

In 2006 and 2008, the Division received referrals regarding R.S., which were determined to be unfounded. Problems continued with J.I.'s other children, however, and ultimately when the Division investigated a referral on January 19, 2009, it discovered that the family, including Bobby, was living in an apartment without electricity or food, triggering the Dodd removal. The order to show cause and verified complaint for abuse and neglect which followed named all of J.I.'s then living children, including Bobby. It was this litigation in which R.S. did not participate.

When Larry was born, he tested positive for THC and was placed on a "social hold" at the hospital. Despite this, J.I. left with Larry and disappeared. Larry was finally located on March 25, 2010, living with an older sister who was in a foster home placement. The Division removed him and placed him in a resource family. Larry was then added to the pending guardianship action.

By the time the complaint was filed on February 22, 2010, R.S. had not visited Bobby since his removal on January 19, 2009. Although R.S. was not sure he was Larry's father, he failed to appear for the paternity test he requested. R.S. has not seen Larry since his removal nor has he requested visits with him. Since being located in April 2010, R.S. was again offered multiple services and failed to engage with any of them. He was offered supervised visitation, psychological and bonding evaluations, parenting skills classes, and drug treatment.

R.S. explained his refusal to see Bobby at the Division offices this way: "you got to come to my house with my son so I can see them. I'm not going to catch the bus or [to] go other places to see my son." When visitation between R.S. and Bobby was suspended because of his failure to appear, it was understood that if he complied with services and Bobby's therapist agreed as to the appropriateness of the visits, they could be resumed. R.S. never made such a request.

R.S. contends that Bobby had no problems prior to his removal in January 2009, while J.I. claimed she took the child to see a psychiatrist who said that he was normal. Nonetheless, Bobby has displayed significant behavioral problems that resulted in seven placements by the time he was seven years old. In addition to behavioral issues that have resulted in his removal from foster homes, Bobby has made statements regarding sexual activity with one of his brothers which requires the children to be kept apart. Ultimately, on October 14, 2009, Bobby was admitted to the UMDNJ Children's Transitional Residence in Piscataway where he remained until he was able to move into a treatment home in Newark. He remained there until July 2011, when he was moved to a resource family treatment home in Somerset.

Larry has been in placement since March 2010, when he was four months old. Except for one week, he has lived with his current resource family, who wishes to adopt him.

J.I. never provided the names of relatives for Larry and was also uncertain if R.S. was the father. Sibling visitation was arranged for Bobby and Larry ...

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