NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Appellant,
T.D.  and R.C., Defendants-Respondents, and R.G., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF M.G.,
Submitted March 21, 2018
appeal from Superior Court of New Jersey, Chancery Division,
Family Part, Union County, Docket No. FG-20-0040-13.
S. Grewal, Attorney General, attorney for appellant (Andrea
M. Silkowitz, Assistant Attorney General, of counsel;
Christina Ramirez, Deputy Attorney General, on the brief).
E. Krakora, Public Defender, attorney for respondent T.D.
(Mary Potter, Designated Counsel, on the brief).
E. Krakora, Public Defender, attorney for respondent R.C.
(John A. Albright, Designated Counsel, on the brief).
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).
Judges Fuentes, Koblitz, and Suter.
Jersey Division Of Child Protection and Permanency
(Division),  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. 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).
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. 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).
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.
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.
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.
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
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.
Division performed a Dodd removal,  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.
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.
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.
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."
concluded: "At this time, it does not appear that [T.D.]
is capable of parenting independently." She made the
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
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
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."
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.
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."
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
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
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."
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
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.
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.
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."
August 22, 2011, T.D.'s new therapist provided a
generally favorable update. The therapist's
[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.
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
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."
[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.] ...