On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FA-08-35-98a.
Before Judges Skillman, Wallace, Jr. and Wells.
The opinion of the court was delivered by: Wallace, Jr., J.A.D.
This is an appeal from a judgment terminating defendant Mary James' *fn1 parental rights to her daughter, Amber, and granting adoption in favor of plaintiffs, Joseph II, *fn2 the paternal grandfather, and his wife, Cheryl Smith. The Family Part Judge also terminated the parental rights of the biological father, Joseph III, and set and allocated the fee of the Guardian Ad Litem (GAL) among plaintiffs, defendant, and Joseph III.
On appeal, defendant contends the court erred in: (1) denying her fundamental rights as a parent by proceeding with the later-filed adoption complaint, instead of first addressing the earlier-filed custody complaint; (2) applying the wrong legal standard and making factual findings which were not supported by substantial credible evidence; (3) failing to admit into evidence attachments to the Adoption Home Study Report, and limiting her cross-examination regarding those attachments; (4) granting plaintiffs' motion to exclude the other grandparents from participating as objectors at trial; and (5) compelling her to pay a portion of the GAL's fee. In their cross-appeal, plaintiffs contend the court erred in appointing a GAL and in compelling them to pay the majority of the GAL's fee. We affirm the termination of defendant's parental rights, but reverse the award of adoption in favor of plaintiffs and remand for further proceedings. Further, we affirm the appointment of the GAL, reverse the allocation of any portion of the GAL's fee to defendant and remand for redetermination of the amount of the GAL's fee plaintiffs must pay.
In 1989, defendant gave birth to her first child, Sarah. That same year, defendant began using heroin, and by 1991, she had developed a $100-a-week heroin habit. She gave legal custody of Sarah to her parents, Cindy and David James.
Defendant began dating Joseph III when she was twenty-one and he was twenty. At the time, Joseph III lived with his mother, Pam Little. He had pled guilty to possession of drugs and had served time in prison.
In June 1992, defendant and Joseph III moved to Florida. Defendant was pregnant with Amber at the time. She claimed she stopped using heroin and cocaine early in her pregnancy. Following the birth of Amber on July 4, 1992, defendant cared for her daughter while Joseph III worked for a construction company.
In 1993, Amber was diagnosed with a lazy eye disorder. A doctor advised corrective surgery, but defendant and Joseph III could not afford the surgery. In April 1995, Dr. Ho informed defendant that Amber's eyes would get worse unless she had the necessary surgery.
Defendant's New Jersey driver's license had previously been suspended for failure to pay traffic fines. At some point, she used a false social security number to obtain a Florida driver's license. Later, defendant's Florida license was also suspended for failure to pay traffic fines. Joseph III also had his driver's license suspended. Nevertheless, both continued to drive.
In 1994, Joseph III was arrested in Florida for possession of cocaine and resisting arrest. He was found guilty and received a probationary sentence. Defendant and Joseph III continued to use drugs. One of their friends, Aubrey Jones, had an extensive criminal history. Aubrey introduced defendant to Valium and Dilaudid, a synthetic form of heroin. Defendant began writing bad checks as a source of money to use to buy drugs. Later, she was arrested and convicted.
On May 24, 1995, shortly before he was to be sentenced to a rehabilitation facility, Joseph III wrote and signed a document relinquishing custody of Amber to Joseph II. Joseph III wrote:
It is my intention that [my father] care for my child while I am in drug rehabilitation. [Amber's] mother is unable to care for her. Defendant claimed she was not aware of this document. In any event, she continued to care for Amber. In December 1995, defendant left her job due to her drug problem. She began pawning personal and household items to pay for her heroin habit.
Later that month, plaintiffs traveled to Florida to visit with Amber. They noticed that defendant's house was filthy, smelled like cat urine, and there was no food in the refrigerator. Plaintiffs observed that Amber showed signs of developmental delay. In addition, plaintiffs were informed of Amber's need for eye surgery. They immediately arranged for the surgery, which was successfully performed on both of Amber's eyes on December 20, 1995. Plaintiffs were fearful of leaving Amber with defendant and Joseph III. They called defendant's mother, Cindy, who lived about an hour-and-a half away, in Inverness, Florida, but she declined to intervene.
In February 1996, Pam visited Florida because she was concerned about Amber's living arrangements. Defendant told Pam they had been evicted from their home and lived with her friend, Aubrey, for a while. Pam suggested that she and plaintiffs could care for Amber until defendant and Joseph III could get their lives in order. Joseph III agreed to allow Pam and plaintiffs to care for Amber in New Jersey.
On February 17, 1996, Pam received custody of Amber and returned to New Jersey with her. Pam arranged with plaintiffs for Amber to reside with plaintiffs from Sunday evening to Thursday or Friday evening and to reside with Pam on weekends. Plaintiffs and Pam assumed full financial responsibility for Amber.
On February 20, 1996, defendant was arrested for theft and for battery. She was subsequently charged and convicted of shoplifting, battery, resisting a merchant, and unauthorized use of a driver's license. By March 1996, defendant and Joseph III had a heroin habit of $600-a-week.
On May 24, 1996, Joseph III was sentenced to a six-month term in a rehabilitation facility. Defendant then moved in with her mother in Inverness, Florida. She continued to use drugs.
On June 26, 1996, defendant entered the QUAD County Methadone Treatment Center, where she tested positive for opiates. She also tested positive for opiates from July 1996 through October 1996.
On August 23, 1996, plaintiffs brought Amber to Florida to visit with defendant and Joseph III, who was still in the rehabilitation center. Defendant tested positive for opiates that same day. After a two week stay, plaintiffs indicated they were ready to leave, but defendant did not want them to take Amber back to New Jersey.
On September 1, 1996, plaintiffs filed a complaint with the Florida authorities. That same day, John Vincelli, of the Department of Children and Families in Florida, investigated and found no evidence that Amber was in danger or should be removed. He noted the house was nice and defendant had an adequate support system.
Meanwhile, plaintiff returned to New Jersey while his wife Cheryl remained in Florida. On September 4, 1996, plaintiff filed an emergency application in New Jersey for temporary custody of Amber, which was granted. The court order was forwarded to Florida. On September 11, 1996, the Florida authorities removed Amber from defendant's mother's home. Defendant was present in the house but hid in the basement to avoid arrest on outstanding warrants. Cheryl returned to New Jersey with Amber.
Plaintiffs immediately sought the assistance of Dr. Robert Waters to counsel Amber in resolving any problems she might have. They also placed Amber in preschool for three half-day sessions per week.
A hearing in plaintiffs' custody action was held on November 6, 1996. Defendant did not appear. A Family Part Judge in Gloucester County entered an order granting temporary custody of Amber to plaintiffs and permitting defendant to modify the order on short notice. Defendant made no immediate application to modify the order.
On December 10, 1996, Joseph III was released from the Florida rehabilitation center and returned to New Jersey to visit his mother. He was arrested shortly thereafter for a probation violation resulting from his prior New Jersey conviction. During the Christmas holidays, defendant also came to New Jersey and visited with Amber. Defendant returned to Florida after the holidays.
On January 23, 1997, defendant was arrested for obstructing an officer, fraud, impersonation, and unauthorized use of a driver's license. Defendant entered a drug program in February 1997. She continued to use drugs and refused to undergo the recommended family counseling. Defendant continued to test positive for opiates from February 1997 through August 1997.
Thereafter, defendant's parents, David and Cindy, filed a complaint for custody of Amber in New Jersey. They were granted visitation with Amber, and the court referred the parties to mediation. The court order indicated that the parties agreed that Amber was not to have "any contact with her natural parents without a prior court order."
In June 1997, defendant traveled to New Jersey and filed an application for custody of Amber. It does not appear that she visited with Amber on this occasion, and she returned to Florida a short while later. Defendant continued to test positive for opiates.
In September 1997, defendant filed a motion to intervene in the custody action or to consolidate her complaint with plaintiffs' action. She sought custody of Amber, or in the alternative, visitation. Pam also filed an application for visitation, claiming that plaintiffs prevented her from seeing Amber. On November 14, 1997, the court consolidated all matters, appointed Janet Berson as a therapist for Amber, ordered home evaluations for plaintiffs, defendant, and David and Cindy James, required defendant's counsel to "obtain and provide the court with complete information on defendant's drug use, treatment, and course of treatment," and directed that defendant have no contact with Amber.
In April 1998, defendant was involved in a serious car accident in a vehicle driven by Robert Lentini, her then boyfriend. Several people were killed in the accident. Shortly thereafter, defendant separated from Lentini and moved back with her parents in Inverness.
In a letter report of June 16, 1998, to the court, Berson recommended that defendant and Joseph III have no contact with Amber due to their continued drug abuse, explaining that:
Information received regarding [Amber's] biological parents indicates that [defendant] who is still in Florida was recently in a car accident resulting in several fatalities. The driver is the man she has been involved with who is also on methadone. [Joseph III]
. . . is currently incarcerated for various probation violations possibly resulting from driving incidents. It is clear that the parents continue to have difficulties and have not ...