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New Jersey Division of Youth and Family Services v. E.W.

Superior Court of New Jersey, Appellate Division

October 21, 2013

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
v.
E.W., Defendant-Appellant. IN THE MATTER OF GUARDIANSHIP OF T.W. and A.W., Minors.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 18, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-0116-12.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lisa N. Brown, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors T.W. and A.W. (Christopher A. Huling, Designated Counsel, on the brief).

Before Judges Maven and Hoffman.

PER CURIAM

Defendant E.W., mother of T.W. and A.W., challenges a June 12, 2012 Family Part order terminating her parental rights and granting guardianship to the Division of Youth and Family Services (the Division)[1] to secure the children's adoption. On appeal, defendant argues the evidence was insufficient to satisfy the statutory requirements of the third prong of the best interests test, N.J.S.A. 30:4C-15.1(a)(3), and claims her constitutional rights were otherwise violated by the trial court's decision. The Law Guardian supported termination before the trial court and, on appeal, joins the Division in urging us to affirm. We affirm.

I.

On April 8, 2009, the Division received a referral stating that defendant had tested positive for phencyclidine (PCP) after giving birth to her third child, A.W. The referent claimed that defendant "only went to one appointment at the clinic so . . .she received no prenatal care." The referent stated that defendant "has been using PCP for about a year and the last time she used was prior to delivery, " and that defendant "seems to [be] mentally challenged."

The Division began its investigation that day by visiting the hospital, where it learned that the child, A.W., also tested positive for PCP. The Division interviewed defendant who informed the caseworker that she was aware of the positive drug results and confirmed the referent's claim that defendant went for prenatal care once when she was five or six months pregnant. Defendant told the caseworker that a man named E.K. was A.W.'s father, but he was incarcerated. The caseworker reported that defendant "appear[ed] to be limited."

The Division also spoke with defendant's sister, L.W., [2] who was "shocked" to hear that A.W. tested positive for PCP. L.W. stated that she was unaware that her sister was using drugs while pregnant. When asked whether she wanted to be the child's caretaker, L.W. stated that she "did not want to become involved with [the Division] again, " but that she would "think" about it. A few months later, L.W. informed the Division that she would be unable to care for A.W.

On April 13, 2009, the Division substantiated a finding of neglect against defendant, and conducted a Dodd removal[3] of A.W. At that time, the Division provided defendant a case plan in which defendant agreed to submit to a drug and alcohol evaluation, as well as attend a psychological evaluation and parenting classes. On April 15, 2009, the trial court granted the Division care, custody and supervision of A.W. The court found that "[i]t would be contrary to the welfare of the child to return [A.W.] to [the] mother due to her drug use" and "prior [Division] history." The court, however, granted defendant weekly supervised visitation, while ordering the Division to "explore any relatives offered as potential caretakers for the baby, " and produce E.K. for the next hearing.

Two days later, the Division referred defendant for a substance abuse evaluation. Defendant admitted that she had been using illegal drugs since she was sixteen years old and last used drugs on March 9, 2009 while pregnant. She also reported that she previously received three rounds of drug treatment, but only remembered entering the Straight & Narrow program in 2008, which she did not complete. Defendant was subsequently referred for long-term residential treatment at Seabrook House, Inc., but she did not enroll due to her failure to complete the prerequisite pre-admission evaluations.

In August 2009, Leslie A. Trott, Ed.D., conducted a psychological evaluation of defendant. Dr. Trott reported that defendant "struggles to function independently and cannot cognitively compose solutions to average, day[-]to[-]day child management challenges" and that "she is mentally retarded." He also opined, "it is clear [defendant] lacks the potential to parent." Dr. Trott recommended that defendant comply with an inpatient treatment program, which included psychiatric services.

Following defendant's court-ordered hospitalization with Jersey City Medical Center (JCMC) in August 2009, its staff psychiatrist informed the Division in November 2009 that defendant's "case was closed due to [n]on-compliance with program rules." Specifically, defendant had been admitted into the facility four times between May and October – twice with the psychiatric inpatient unit, once with the acute partial hospital program, and once with the partial hospital program. Each time, defendant displayed "zero commitment, " declined services and medication, and dropped treatment. Defendant also refused to provide the Division caseworker with her latest address and telephone number.

In a November 2009 compliance review, the court noted defendant's failure to comply with Division services and warned defendant of the possibility of the termination of her parental rights. At a March 2010 permanency hearing, the court found that defendant "[had] not complied with services" and that "[defendant's] visits with the child [were] sporadic." The judge also noted that defendant's untreated drug and psychiatric problems continued to pose a danger to the child. As a result, the court accepted the Division's permanency plan providing for termination of defendant's parental rights followed by adoption of A.W.

On May 14, 2010, defendant tested positive for PCP. Defendant was referred for short-term residential treatment at Sunrise House. On May 27, 2010, the court ordered defendant to comply with substance abuse services and post-partum depression counseling. Because defendant had missed multiple scheduled visitation appointments, the court also required defendant to notify the Division on Fridays whether she would attend visitations with A.W. on Mondays. Defendant did not attend the May 27 hearing.

On June 29, 2010, Sunrise House discharged defendant for noncompliance. In a July 29, 2010 order, the judge wrote: "The failure of [defendant] . . . to comply with any provision of this order or [her] continuing failure to appear may result in a default entered by the court and termination of parental rights."[4] By September, defendant had missed two scheduled psychological and bonding evaluations.

On September 23, 2010, defendant gave birth to a fourth child, T.W. At the time of delivery, defendant tested positive for PCP. The Division's referral report noted that defendant "is insisting that [the Division] is not getting this baby and that she is walking out of the hospital with the new born [sic] baby."

When a Division case manager arrived at the hospital for the child, defendant became very upset. Defendant informed the case manager that she had not received prenatal care and used PCP during her pregnancy, but "didn't use it like that." She then stated that she used PCP when her mother died in August. The Division also learned that T.W. tested positive for PCP, at which point, the Division conducted a Dodd removal of T.W. The court later found the emergency removal to be "appropriate and in the best interest of the child." On September 29, 2010, the Division referred defendant for another substance abuse evaluation. Defendant tested positive for PCP then and again on October 13, 2010.

On October 21, 2010, defendant failed to appear at A.W.'s guardianship hearing. A few days later, however, defendant applied for the "Mommy and Me" program and re-entered the inpatient drug treatment program at Sunrise House. Another hearing was held in November, at which defendant appeared, and the court ordered her to comply with the drug treatment program. Nevertheless, Sunrise House discharged defendant days later for noncompliance.

Following a fact-finding hearing on January 20, 2011, the court found by a preponderance of the evidence that defendant abused or neglected T.W. "by exposing her to a substantial risk of harm by using PCP during her pregnancy." The court ordered defendant to comply with services, including another substance abuse evaluation. The judge also reviewed the guardianship matter regarding A.W.

From March 2011 through August 2011, defendant tested positive for PCP multiple times and failed to complete various treatment programs because of noncompliance, as well as hostile and aggressive behavior. On April 1, 2011, Liberty Health/JCMC informed the Division that defendant had been enrolled in its psychiatric program since March 10, 2011. The facility reported that defendant maintained irregular attendance[5] and demonstrated poor judgment and insight. During this time, the Division caseworker contacted defendant, who became combative with the worker, "yelling and cursing when [the worker] asked her what were her plans in reference to A.W." ...


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