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New Jersey Division of Child Protection and Permanency v. T.D.

Superior Court of New Jersey, Appellate Division

May 3, 2018

T.D. [1] and R.C., Defendants-Respondents, and R.G., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF M.G.,

          Submitted March 21, 2018

          On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-0040-13.

          Gurbir S. Grewal, Attorney General, attorney for appellant (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christina Ramirez, Deputy Attorney General, on the brief).

          Joseph E. Krakora, Public Defender, attorney for respondent T.D. (Mary Potter, Designated Counsel, on the brief).

          Joseph E. Krakora, Public Defender, attorney for respondent R.C. (John A. Albright, Designated Counsel, on the brief).

          Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors-appellants B.C. and A.G. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

          Before Judges Fuentes, Koblitz, and Suter.


          KOBLITZ, J.A.D.

         The New Jersey Division Of Child Protection and Permanency (Division), [3] and the Law Guardian on behalf of the two young children, appeal from the Family Part's June 30, 2016 order denying termination of parental rights following an extended eighteen-month trial at which twelve witnesses testified and hundreds of exhibits were admitted into evidence.[4] The trial judge found that the Division did not provide reasonable services to the mother, who used a wheelchair. Considering our standard of review of a decision not to terminate parental rights, we affirm. See N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014).[5]

         This appeal involves the termination of parental rights of T.D., a mother suffering from multiple sclerosis (MS) and R.C., the father of her two youngest children, B.C. (Belle) and A.G. (Alice), born in 2012 and 2014, and removed from the care of their parents shortly after birth.[6] The trial judge found the Division failed to establish any of the four prongs required to terminate parental rights. N.J.S.A. 30:4C-15.1(a).

         Although the trial judge may have erred in his analysis of the first two prongs of the four-prong best-interests-of-the-child test, the trial judge did not mistakenly conclude that the Division failed to establish, by clear and convincing evidence, the third and fourth prongs.


         Although no medical records were ever placed into evidence, T.D. was evidently diagnosed with MS in 2 007 or 2 008, when she was in her early thirties. She was confined to a wheelchair. We must set forth the Division's involvement with this family in some detail to fully explain our decision. We include some of the history involving Mary, an older daughter not involved in this appeal, because it sheds light on the Division's failure to provide handicap-accessible services to T.D.


         The Division first became involved with T.D. in October 2008, just after her daughter Mary turned six. A Division investigation found Mary to be well-groomed and the family home, a three bedroom apartment, to be clean with working utilities. T.D. reported that she had a "nurse" come every day to assist with cooking and household tasks. The Division's assessment noted that T.D. had MS and "limited mobility" but that she was "caring for her children to the best of her ability, " and it concluded that the allegation of neglect was unfounded.

         A year later, Mary's paternal aunt called the Division to report concerns that Mary was not being cared for properly. The Division concluded that the allegations of neglect were unfounded, but noted T.D. "is wheelchair bound and relies on homemakers to do the house cleaning and cooking, " and that she "cannot enforce the house rules and does not appear to have a strong hold on her children's behavior."[7]

         Two months later, in January 2010, the paternal aunt again called the Division with concerns. The caseworker observed that the apartment had a bad odor, broken furniture, trash and dog feces on the floor, roaches on the kitchen counter top, and no food in the refrigerator. The Division worker saw an "empty whiskey bottle in the living room underneath a chair by the front window, " which T.D. said belonged to her father. T.D. confirmed that a "home aide service provider" came daily.

         The Division performed a Dodd removal, [8] placing Mary with her paternal aunt. The Division stated it would "[c]ontact the home health aide to verify their involvement with the family." A Division worker acknowledged at trial that the deplorable condition of the home showed that the home health aide was not doing her job, but the Division did not address the issue or replace the provider with one of the other services used by the Division.

         T.D. stipulated that her home had been in a deplorable condition rendering it unsafe and unfit for children to occupy. The court ordered her to (1) undergo psychological and substance abuse evaluations, (2) attend parenting skills training at Community Access, and (3) cooperate with homemaker services. The sole reason for ordering the substance abuse evaluation was the presence of the empty whiskey bottle in the apartment during the Division's visit.

         At a later hearing in March 2010, Judge Spatola directed the Division to confirm that Community Access either had the ability to transport T.D., who used a wheelchair, to its office or to provide services in T.D.'s home. The judge stressed that handicap accessibility "is important." Judge Spatola noted that providing a "teaching homemaker" two days a week in addition to the existing daily home health aides "would be a good idea" because such a person would offer a different service than the existing caregivers and "might be able to assist [T.D.] in learning techniques to help her." The Division did not follow up on this judicial suggestion.

         Briana Cox, Psy.D., evaluated T.D. in April 2010. Dr. Cox noted that T.D. "may be caring for her children to the best of her ability, but that does not necessarily mean that she is meeting their needs." In particular, Dr. Cox raised concerns that T.D. (1)"demonstrated a tendency to deny or minimize" problems, (2)was "uncooperative with testing demands, " (3) "appear[ed] to have little control of the children, " (4) reported taking medication, including oxycodone, that could interfere with her ability to be alert and focused, and (5) had a serious medical condition that required her to have assistance with her own needs and made it "unlikely that she can meet the needs of her children."

         Dr. Cox concluded: "At this time, it does not appear that [T.D.] is capable of parenting independently." She made the following recommendations:

1. It is recommended that [the Division] obtain [T.D.]'s medical records and consult with her treating physician about her physical limitations and what she can be expected to do on her own.
2. It is recommended that a medical professional review her medications and advise [the Division] about the side effect of drugs such as oxycodone and the expected limitations on functioning as a result of using that, or other drugs.
3. It is recommended that [T.D.] have a substance abuse evaluation. It is recommended that her use of prescribed medication be investigated.
4. It is recommended that she complete parenting classes.
5. It is recommended that she participate in individual therapy to address the impact of MS on her psychological functioning and assist with adjustment. It is recommended that this therapy be provided in-home.
6. It is recommended that [the Division] investigate relative resources in order to provide [T.D.] with assistance in caring for her children on a regular basis.
7. It is recommended that [Mary] and [T.D.'s older son] participate in psychological evaluations to determine if they have any needs at this time.
8. It is recommended that home health aide services continue in the home.
9. It is recommended that [T.D.] maintain appropriate housing.
10. [T.D.] may benefit from a support group for individuals who have been diagnosed with MS.
11. It is recommended that [T.D.] be reevaluated in 6-12 months to determine if she has been able to benefit from services. It is recommended that [the Division] obtain records from her participation in services and provide the evaluator with those records at the time of the new evaluation.

         Dr. Cox's trial testimony was consistent with her report. Dr. Cox testified that her "goal in this report" was to provide professional insight as to services "the Division should supply to [T.D.] to assist her in addressing anything that might exist to achieve reunification."

         In September 2010, the Division was ordered to "obtain [T.D.]'s medical records for medical consult as to potential side effects and limitations of functions as it pertains to [T.D.]'s parenting." Medical records were not obtained.

         T.D. participated in the court-ordered substance abuse treatment. Saint Michael's Medical Center reported that T.D. had been admitted into an outpatient substance abuse treatment program meeting three times per week. The results of T.D.'s urine screens and oral swabs were all negative, and the clinician reported that "[w]hen [T.D.] is in attendance, she actively participates in the program."

         On December 3, 2010, the clinician wrote to the Division, stating that T.D. had been present for only one treatment after September 7, 2010, due to problems with transportation. She explained: "On numerous occasions the transportation service that was transporting [T.D.] to and from treatment failed to pick her up on time. Consequently, [T.D.] was left waiting for many hours until the van service could be contacted."

         A few weeks later, the clinician advised the Division that T.D. had successfully completed her substance abuse treatment and was "being routinely discharged . . . with a status of 'Completion', " noting that only a brief course of therapy was appropriate because T.D. had "barely met the requirement for a diagnosis due to a lack of substance use history."

         A Division caseworker, who worked with the family beginning in March 2010, testified at a hearing in December 2 010 that T.D.'s "excuse for not attending services" was lack of transportation. T.D. was approved for transportation services through Access Link by September 2010, and the worker advised T.D. that she should use that service for visits and to attend court-ordered services. In November 2010, T.D. informed the caseworker more than once that Access Link was not working for her "because they don't assist her getting out of her house and she has to wait a block from her house when she needs a ride." She also reported having difficulty with the fees charged. When the worker asked how T.D. was getting to substance abuse treatments at Saint Michael's without Access Link, T.D. said "that she was using Medicaid transportation services and she got away by telling them that she needed a ride for a medical appointment."

         T.D. was referred to Family and Children's Services (FCS) for individual therapy, but she had transportation difficulties there as well. FCS agreed to provide transportation through a service called "ON TIME." T.D. consistently attended both individual therapy and visitation with Mary at FCS when the ON TIME service was provided. During a status conference in April 2011, at which T.D. appeared telephonically, Division counsel noted that "since that has been arranged, [T.D.] has been consistent with visitation, " but that "they can only do it biweekly."

         At the April 2011 status conference, Division counsel stated that if T.D. "gets connected with Access Link and she can get to the [Division] office, " she could have visitation on the weeks FCS did not cover. Counsel explained: "But we can't transport her. It's a liability issue. We have no ability to transport her ourselves." The Division attempted to schedule parenting skills classes for T.D. at FCS so that the same transportation could be provided, but FCS was not able to accommodate the request.

         The issue of T.D.'s medical records was also raised. Division counsel stated that T.D. never provided the records; T.D. asserted that she was never asked to provide them. T.D. promised to cooperate by signing any form the Division needed to obtain records. The resulting order stated that the Division "shall obtain [T.D.]'s medical records for medical consult as to potential side effects and limitations of functions as it pertains to [T.D.]'s parenting." The Division did not obtain these records.

         T.D.'s individual counseling and therapeutic visitation at FCS progressed well for several months. On May 25, 2011, FCS reported to the Division that T.D. "has been consistent in her attendance at therapy sessions and has demonstrated motivation towards achieving her treatment plan goals."

         On August 22, 2011, T.D.'s new therapist provided a generally favorable update. The therapist's "impressions" were:

[T.D.] is actively participating in her therapy sessions and is motivated to comply with services in order to obtain custody of her daughter [Mary]. She appears to be making strides towards improving her own life so that she can be more independent and subsequently be able to have her daughter back in her care.

         FCS reported positively on the visitation sessions between T.D. and Mary that had taken place between the end of March and early June 2011. T.D. continued successful bi-weekly therapeutic visits with Mary at FCS through the summer of 2011.

         Alexander Iofin, M.D., conducted a psychiatric evaluation of T.D in February 2011. He believed incorrectly that T.D. had failed to complete her substance abuse treatment. Dr. Iofin noted that, due to T.D.'s MS, "it is unlikely that she can meet the needs of her children when she needs assistance to meet her own needs." He opined she has "psychiatric problems as a result of her significant neurological problems, primarily in the realm of multiple sclerosis." He concluded:

[A] letter from the treating neurologist with prediction of the course of multiple sclerosis, and specific data about treatment of multiple sclerosis, certainly will be helpful to consider, with necessity for the neurologist to comment on her functional limitations. If necessary this should be supported by data from an occupational therapist to have a better idea about the scope of functional limitations that certainly are in existence with [T.D.] ...

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