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

Superior Court of New Jersey, Appellate Division

October 24, 2013

K.J. and E.R., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF R.J., a Minor.


Submitted October 8, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-164-11.

Joseph E. Krakora, Public Defender, attorney for appellant K.J. (Michael C. Kazer, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant E.R. (Richard Sparaco, Designated Counsel, on the brief).

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.J. (Lisa M. Black, Designated Counsel, on the brief).

Before Judges Alvarez and Carroll.


Defendants E.R. and K.J., the biological parents of R.J., appeal separately from the August 1, 2012 judgment terminating their respective rights to R.J. On these appeals, which we have consolidated, defendants contend that the Division of Child Protection and Permanency (Division) did not prove by clear and convincing evidence the four prongs of the best interests test. N.J.S.A. 30:4C-15.1(a). The Law Guardian supports the termination on appeal, as it did before the trial court.

Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition adequately supports the termination of defendants' parental rights. See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2009) (holding that a reviewing court should uphold the factual findings respecting the termination of parental rights if they are supported by substantial and credible evidence in the record as a whole). Accordingly, we affirm.


We discern the following facts from the trial record. Prior to R.J's birth in July 2007, E.R. had a history of involvement with the Division dating back to incidents involving her older child, O.R., in 2002. In October 2005, the Division received another referral, indicating that a parolee who had been incarcerated for endangering the welfare of a child was seeking to change his address to E.R.'s address. In November 2006, the Division was advised that E.R. was using drugs around O.R., and that she was about to be evicted. In October 2008, following R.J.'s birth, the Division was notified that E.R.'s utilities had been shut off for non-payment.

In February 2009, E.R. entered a residential treatment program at Eva's Village. Shortly thereafter, she tested positive for marijuana and PCP. E.R. was unable to remain drug-free, and required an intensive inpatient drug treatment program. In March 2009, the Division removed R.J. from E.R.'s care.

In May 2009, E.R. completed a twenty-eight day detoxification program at Sunrise House. The next month she was reunified with R.J. in a "Mommy & Me" program. During the next ten months, R.J. remained with E.R. in a supervised setting. In November 2009, E.R. completed the Sunrise House inpatient program, and the Division then assisted her transition back to the Eva's Village outpatient program. However, Eva's Village terminated E.R. from its drug treatment program for the second time in April 2010. R.J. was returned to a foster home, as E.R. had again relapsed, and lacked appropriate housing.

Following R.J.'s removal, E.R. was ordered to attend "Project Second Chance, " an outpatient drug treatment program. However, from August 2010 through March 2011, E.R. consistently either tested positive for drug use, or submitted urine specimens that appeared to be tampered with. Also in early 2011, E.R. missed three consecutive substance abuse assessments with Preferred Children's Services.

K.J., the child's father, was similarly non-compliant during this period. In April 2009, he was ordered to submit to "Health Path" for substance abuse treatment, and to attend anger management classes. K.J. was discharged from Health Path because he failed to attend all three sessions. He was then referred to "New Pathway" for treatment, but again failed to attend all three sessions. K.J. was likewise terminated from the anger management program twice, for failing to attend any of its sessions.

When it first became involved with E.R., the Division's goal was reunification. That plan then changed to adoption after K.J. failed to complete a drug treatment program and anger management classes, and E.R., although having completed a program, continued to relapse. Also, neither defendant had stable housing.

The Division filed a guardianship complaint on April 14, 2011. Between March 2011 and early August 2011, while attending Project Second Chance, E.R. remained drug-free. However, she again relapsed, testing positive for marijuana on August 5, 2011. On March 5, 2012, approximately two months before the guardianship trial, traces of marijuana were found in her system.

K.J. again failed to attend anger management sessions, before finally completing them in July 2011. He also failed to appear for six substance abuse assessments in March, April, and May 2011, and again tested positive for marijuana on April 7, 2011, and December 5, 2011. Between December 2011 and February 2012, K.J. was discharged from the New Pathway outpatient treatment program, failed to pick up bus passes the Division purchased for him, and missed scheduled visits with R.J.

The guardianship trial took place on May 15, 2012. Two witnesses, a caseworker and a psychologist, testified for the Division. Neither defendant testified, called any witnesses, or presented any evidence.

Shannon Fields, the Division's caseworker, testified that E.R. had been compliant by participating in substance abuse programs, but had "not been compliant in the sense that she continue[d] to test positive for drugs in forms of relapse." E.R. attributed the traces of marijuana detected in her system in March 2012 to someone she had been living with who used marijuana. However, E.R.'s counselor ...

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