On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FG-02-249-01.
Before Judges Wefing, Collester and Fuentes.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2003
The central figure of this appeal is a little girl with the initials M.S. The Division of Youth and Family Services (DYFS) appeals from a December 26, 2002 order of the Family Part denying guardianship of the child. M.S. was born on April 24, 2000, delivered by a Lodi police officer in a trailer where her twenty-one year old mother, C.S., was temporarily living. M.S. and C.S. were taken to Hackensack Medical Center. After C.S. told a hospital social worker that she smoked marijuana during her pregnancy, both C.S. and her infant daughter were drug tested for marijuana. The test results were positive for both mother and daughter.
The hospital social worker notified DYFS, and caseworker Jean Hill responded the same day. C.S. told Ms. Hill that she took"a couple of puffs" of marijuana on her birthday two weeks before M.S. was born. C.S. said she used marijuana during her pregnancy to control nausea. That statement was later confirmed by J.G., the baby's father. C.S. also told Ms. Hill that she did not seek medical advice during her pregnancy, except for two occasions when she went to a Planned Parenthood office.
At the time she gave birth, C.S. was homeless. She lived in her father's apartment in Lodi until he moved to Paterson with his girlfriend and her children. C.S.'s mother had moved to Missouri in September 1999.
C.S. told Ms. Hill that in the last month of her pregnancy she lived in a car belonging to J.G., the birth father of M.S. A week before the birth, C.S. and J.G. moved into the Lodi trailer park at the invitation of a man named Kevin whom C.S. had known for about a week. It was there that M.S. was born.
At first C.S. denied any domestic violence in her relationship with J.G., but she later stated that J.G. beat her practically every day during her pregnancy and made her smoke marijuana. Nonetheless, she continued living with J.G. and never sought a domestic violence restraining order.
Ms. Hill met J.G. at the hospital the day after M.S.'s birth. J.G. said he was unemployed and homeless. He admitted that he and C.S. smoked marijuana on a regular basis, but he claimed he stopped after a recent arrest. He offered no placement plan for his daughter.
C.S. told Ms. Hill that her plan was to leave the hospital with her baby and return to the trailer park to live temporarily with Kevin. She later asked DYFS to approve an arrangement for her to live with her daughter at the apartment in Paterson where her father lived with his girlfriend. DYFS found the proposed placement inappropriate because of past involvement with the girlfriend. When asked about other relatives, C.S. told Ms. Hill that her mother lived in Missouri and that she had two sisters, one in Missouri and the other in Massachusetts. C.S. told Ms. Hill that she wished to remain with her child in New Jersey.
On April 27, 2000, three days after she gave birth, C.S. was discharged from Hackensack Medical Center. Because of unstable housing, the history of domestic violence, drug use by C.S. and the lack of prenatal care, a hospital hold was placed on M.S. Meanwhile C.S. returned to the trailer park and stayed with friends. An order to show cause was signed by a Family Part judge on April 28, 2000, placing M.S. in the custody of DYFS pursuant to N.J.S.A. 9:6-8.21 pending the return date. On May 3, 2000, the court-ordered custody of M.S. was continued with DYFS pending placement. An attorney was appointed for C.S., and a law guardian was selected for the child. DYFS's permanency plan was to reunite M.S. with C.S. In support of this plan, the child was transferred from the Warren County foster home where she had been placed following her release from the hospital to a Bergen County foster home in order to provide C.S. easier access for visitation with her daughter.
On the return date of May 3, 2000, the court directed C.S. submit to a psychological evaluation, attend an out-patient drug program and complete a parenting skills program administered by the American Red Cross. C.S. was granted weekly supervised visitation. DYFS was directed to make an interstate referral to Missouri in order to evaluate the home of C.S.'s mother as a back-up placement.
J.G. did not appear on the return date. An attorney was appointed to represent him. He was ordered to submit to a paternity test, comply with drug and psychological evaluations and attend parenting skills sessions. The results of the paternity test confirmed that J.G. was the birth father of M.S., and J.G. did not dispute the result. He told the assigned DYFS worker that he was"trusting the State to take good care of [M.S.]." At no time did J.G. suggest any permanency plan for his daughter.
One month after the birth of M.S., DYFS made arrangements for C.S. to reside at Project Peace, a structured home environment in Montclair for women to live with their children.
The home provided childcare in order for residents to meet their work and program obligations. The plan was for C.S. to live at Project Peace and begin compliance with court-ordered services while awaiting the next court date to unite her with M.S. Supervised weekly visitation was to continue in the interim.
Initially, C.S. followed the plan. She moved into Project Peace on May 26, 2000. She attended the first of two sessions for the mandated psychological evaluation. She also began attending Options, an out-patient drug treatment program she selected in Paterson. DYFS gave C.S. a monthly bus pass to defray transportation costs to Options and for visitation with M.S.
Unfortunately, these arrangements were short-lived. C.S. walked out of Project Peace after a week following an argument with a staff member about adhering to the house rule prohibiting locked doors. C.S. later testified that she locked her door because items had been stolen from her. She returned to Lodi but later called Project Peace to ask if she could return. Her request was denied. Again she was homeless. She moved into a trailer in Moonachie with a former boyfriend and his mother until she was told to leave. She then went to live with a girlfriend and her three children. On June 6, 2000, C.S. and her father had visitation with M.S. It would be the last time she would see her child for two years.
On June 9, 2000, C.S. was discharged from Options because of"consistent non-compliance with attendance policies." During her month in the program, C.S. tested positive for marijuana. She later testified the result must have been residual to her"couple of puffs" two weeks before M.S. was born. She also said that the setting of the program was"scary," and she felt out of place since the group participants were heroin and cocaine addicts. She also said that J.G. was stalking her near the program site in Paterson.
C.S. failed to attend either the parenting program specified by the court or recommended domestic violence counseling. She said that she could not attend because her bus pass had been stolen, but she did not ask DYFS for a replacement pass.
It is undisputed that C.S. did not tell DYFS she had been terminated from Project Peace and Options. The agency first became aware on June 19, 2000, when a volunteer scheduled to drive C.S. to Options was told by a representative of Project Peace that C.S. had been discharged for non-cooperation. On the same day, C.S.'s DYFS worker received a call from a woman who said that C.S. had been staying with her and her son in Moonachie and that she had"kicked C.S. out." C.S. called DYFS the following day to cancel her scheduled visitation because she had"pink eye." She told her DYFS worker that she was staying with friends but did not know the address or the phone number.
The next day, June 21, 2000, neither C.S. nor J.G. appeared at a scheduled court review hearing. The judge was advised that C.S.'s father had moved from New Jersey and was now living in Missouri with C.S.'s mother. DYFS was directed to investigate that home for possible placement of M.S. Meanwhile, DYFS continued its efforts to locate C.S. Family Specialist Melena Anderson called C.S.'s mother in Missouri, who said she had no idea where her daughter was living. Ms. Anderson then initiated a search for C.S. through the DYFS Permanency Support Unit, but C.S. could not be found.
On July 10, 2000, C.S. called Melena Anderson at DYFS to report she found a job and was living in an apartment. However, she declined to give Ms. Anderson the phone number or the address. Ms. Anderson told C.S. that her parents were worried about her and that disappearing was not going to help her reunite with M.S. Ms. Anderson also offered to arrange visitation with M.S. the following day if C.S. called the next morning. C.S. did not call.
After both C.S. and J.G. failed to attend the August 2, 2002, compliance hearing, the Family Part judge suspended their visitation because of their failure to comply with court-ordered services and attend court hearings. At this hearing the court learned that the Missouri home study of C.S.'s parents concluded on July 27, 2000, with a recommendation that M.S. be placed with her maternal grandparents on condition that M.S. be made a ward of the New Jersey Family Court for one year and that C.S. be permitted to join the household only if she successfully completed substance abuse treatment.
DYFS objected to any placement with the maternal grandparents because it discovered that C.S.'s mother had a lengthy history with the agency, which included physical and mental abuse of C.S. and her two sisters, the denial of family crisis assistance and the rejection of counseling services. Of particular concern was the information that although C.S. and another sister had been sexually molested as children, the parents rejected offers of therapy for them. According to DYFS, C.S.'s mother did not disclose any of this information when the home study was conducted in Missouri. Moreover, at that hearing the attorney for C.S. advised the judge that C.S. was adamantly opposed to placement of M.S. with her mother because of her"horrible childhood," which included repeated beatings by her mother. As a result, no action was taken by the court to place M.S. in Missouri.
Ms. Anderson continued her efforts to locate C.S., sending letters to her last reported address at the Lodi trailer park. One of the letters informed C.S. of a review of the case to be held at the DYFS regional office on September 25, 2000. C.S. appeared at the DYFS office on that date with a person she introduced as her new boyfriend. She told Ms. Anderson she was living with friends at the trailer park where she could receive mail but could not take phone calls. She said she was working at a pet store named Pet Pourri in the Garden State Plaza in Paramus. At the trial Ms. Anderson related the balance of her conversation with C.S. as follows:
I asked her why she hadn't been in touch with myself or anyone at the Division. She stated that she had things to take care of, that she needed to do by herselfà She said she loved her daughter and wanted to see her. I asked her if she was interested in surrendering the baby. She said no that she wasn't and she wanted the baby to go to her mother because at least then she could hear her daughter over the phone when she calls her mother.
I informed her that the attorney had represented at the last court hearing on August 2, thatà she, in fact, didn't want the baby to go with her mother at that time; that she told her attorney and her attorney had represented to the court that she had had a horrible childhood as a result of her mother and was physically abused by her mother.
She said she never said that but she -- that she didn't want her daughter in Missouri because she didn't want to be away from her but -- at that time she changed her mind and thought it was a good idea.
Ms. Anderson told C.S. that her visitation had been suspended by the court because of her failure to attend court ordered programs and complete her psychological evaluation. C.S. agreed to cooperate in the future. Before she left the DYFS office, C.S. submitted to a drug test at the request of Ms. Anderson. The result was positive for marijuana.
After C.S. left the DYFS office on September 25, 2000, Ms. Anderson again made arrangements for C.S. to attend a drug counseling program, a parenting skills program and to complete the psychological evaluation. She sent letters confirming these arrangements and appointments to C.S. by certified and regular mail to the address given by C.S. at the Lodi trailer park. Although the certified letters were returned as unclaimed, the regular mail was not returned. Ms. Anderson called for C.S. at Pet Pourri and was told that no such person worked there. C.S. did not keep any of the scheduled appointments or attend any of the mandated programs.
Ms. Anderson next heard from C.S. a month later when she called on October 23, 2000. Ms. Anderson recalled the phone conversation as follows:
[C.S.] said she had to talk to me about what was going on. And I quote,"Because by all things that are right on heaven and earth, I can't understand why you are working so hard to keep [M.S.] from her family."
She asked me why I couldn't put the baby with her mother and father. I explained to her that there was a problem with her mother and father as caregivers for [M.S.] as they have a long history with the Division. She stated,"But that happened years ago." And I said to her that the issues regarding abuse [were] involved in her home growing up [were] very real and relevant to [M.S.] insofar as the Division would feel she would be at risk in the homeà
She stated that if the Division would just give them the baby, meaning her mother and father, that she would go out to Missouri and take care of her and that they wouldn't be as responsible for her.
I told her that I was concerned that she was not able to take care of the baby because she's not able to take care of herself. She stated that she would have food for the baby and clothes and shelter, that other people would provide for her and the child. I questioned how solid this plan was and told her that I questioned her commitment to the child as she had not called me for one month. And since the last time I spoke to her, she missed an appointment with the psychologist.
I told herà that I had written a letter to her explaining all that she needed to do to satisfy the court order, and she told me that she never received the letter. And I told her that I had sent it to the address that she gave me and that if she moved she should have called me to tell me that. She stated that she was still living at 56 Center Row but that she's not staying there. I told her that I don't understand that and, if we able to communicate, that she would let me know how to get in touch with her. àI told her that I tried to call her at her job but they had never heard of her. She stated that was because she worked there under a fake name. I questioned this and she said that she had her reasons. I asked her if she was still working there. She said no. She was looking for another job.....
I asked her to call [the psychologist] and set up an appointment as I had already done that for her and had to cancel because she hadn't called to confirm. I asked her to call the American Red Cross and set up classes. I asked her to write down the number. She stated she would get the number on her own and she didn't need it. I asked her to engage in out-patient treatment. She stated,"We'll see about that. I'm not going to your little program." I told her that she could find one for herself. As long as it fit the criteria of what the court wanted that there should be no problem.
I found her to be difficult and not forthcoming. I asked her if she still wanted to meet the following day. She stated that didn't think it was necessary as she said everything that she wanted to say and didn't think that she'd be able to change the worker's mind regarding the placement of [M.S.].
C.S. appeared in court a week later at the November 1, 2000, compliance hearing. The Family Part judge continued the suspension of visitation until C.S. was"fully compliant" with all services and evaluations. DYFS was also ordered to conduct a home evaluation in Massachusetts of M.B., C.S.'s sister and M.S.'s maternal aunt.
Before leaving the courtroom, C.S. was given a new appointment to complete her psychological evaluation. She called Ms. Anderson five days later to say that she wished to go back to the out-patient drug program. She came to the DYFS office that afternoon and picked up another monthly bus pass. She told Ms. Anderson she was leaving the trailer park and gave her a new contact phone number at the home of her boyfriend's parents. Ms. Anderson reminded C.S. of the necessity of attending drug counseling, domestic violence counseling, parenting classes and keeping her appointment for the psychological evaluation to be reunited with her daughter.
On November 17, Ms. Anderson received a phone message from C.S. that it was important she speak with her. Ms. Anderson called the phone number left by C.S. twice and left messages with two different people for C.S. to return the call. No return call was received. C.S. did not appear at the psychologist's office for her scheduled appointment to complete the evaluation. She also failed to attend any programs ordered by the court. C.S. later testified that she did not comply with the directions of the court because she had made plans to move to Missouri.
In December 2000, C.S. left New Jersey for Missouri without notifying DYFS, the Family Court or her attorney. She later testified that between January and March 2001, she called DYFS weekly to report and check on M.S., but DYFS records do not indicate any such calls. C.S. said she spoke to DYFS worker Judy Rocha in January 2001, to explain her situation. Ms. Rocha testified she had no conversation with C.S. until late March 2001.
Meanwhile, pursuant to prior orders of the Family Court, a supplemental home study was completed of the maternal grandparents by the Missouri social agency. C.S.'s mother was asked why she had failed to mention her prior DYFS contacts, and she responded that she must have misunderstood the question during her first interview. Although C.S. had by that time moved to Missouri and was living with her parents, C.S.'s mother never mentioned it to the evaluator because,"He never asked me." When asked about M.B., her daughter living in Massachusetts, she said they did not have a relationship. She opposed any placement of M.S. because she believed M.B. would prevent her from seeing her granddaughter out of spite.
The Missouri social worker found that a placement with C.S.'s parents was appropriate only on a conditional basis as opposed to a permanent placement. He wrote:
I would recommend the Court consider placement of [M.S.] with [E. and J.S.]. However, due to the New Jersey DYFS concerns about [their] past history with the Division, I believe that his placement should be a"Relative (Grandparent) Foster Care Placement" in accordance with the Interstate Compact v. an "Adoption Placement". In addition, I would recommend that M.S. either remain a Ward of the Superior Court of New Jersey, Chancery Division - Family Part, for a minimum of one year after placement to ensure her stability, or the Circuit Court of Audrain County, Missouri, Juvenile Division, and the Missouri Division of Family Services be contacted regarding accepting transfer of this case via the Interstate Compact. This would allow the Missouri DFS and Audrain County Juvenile Office to closely monitor M.S.'s placement and would facilitate her removal and placement in foster care, if the [grandparents] fail to comply with the Division's services and recommendations.
Coincidentally, on January 16, 2001, the same day the Missouri report was sent to the Family Court in New Jersey, the Massachusetts Department of Social Services submitted its report recommending placement of M.S. with M.B., the maternal aunt of M.S. and a single mother of a two-year old boy living in a Boston suburb. The report recommended a permanent placement.
It is our recommendation that M.B. be approved for the placement of her niece M.S. Her home meets all the standards of theà regulations in regard to space and safety. Her references have given glowing recommendations and M.B. has a large support network in her church community and friends. She is a young woman who had had to endure many hardships throughout her young life and she has managed to do so with the help of therapy and spiritual support. She has to date done a wonderful job raising her own biological son and another child will transition into her home easily as she has prepared her son as much as one can with a 2 an 1/2 year old.
At the January 17, 2001, compliance review hearing, DYFS recommended to the Family Court judge that M.S. not be placed with her Missouri grandparents because the recommended placement was not permanent and because of the documented prior history of family abuse. DYFS recommended instead that M.S. be placed with M.B. in Massachusetts. J.G. was present at this hearing and did not object to the recommended placement. C.S. was not present, and her whereabouts were unknown to both DYFS and the court.
The Family Part judge accepted the DYFS recommendation and ordered that the placement with M.B. be self-executing on approval by the law guardian and receipt of the requisite waiver for an out-of-state child placement. Both of these conditions were met, and M.S. was placed in the home of her maternal aunt on March 9, 2001. She was ten and one-half months old. It was her third foster placement after her discharge from Hackensack Medical Center when she was four days old.
On March 26, 2001, C.S. called the DYFS office. Ms. Rocha testified that this was the first time she learned that C.S. had moved to Missouri three and one-half months earlier. When Ms. Rocha asked C.S. why she had not called before, C.S. responded that her parents forbade her to do so. Ms. Rocha said C.S. was surprised to learn that M.S. had been placed with her sister. When she was told that her parents had been previously advised of the placement, C.S. said her mother had not told her.
During that conversation, C.S. told Ms. Rocha she had recently moved from her parents' house into her own apartment, was working at a local Quik-Stop and was engaged to be married. She gave Ms. Rocha an address and phone number. Ms. Rocha called back the next day to give C.S. the name and address of her attorney, and she told C.S. to call or write the Family Part judge to communicate her intentions regarding custody of M.S. Ms. Rocha testified that after that conversation, she did not hear from C.S. for another four months. She made several calls, but there was never an answer. In July Ms. Rocha discovered that the phone was disconnected.
In the meantime, DYFS requested M.B. consider adopting M.S. since there was no plan of reunification of the child with either birth parent, and neither parent had seen their daughter for over a year. When M.B. agreed, DYFS filed a guardianship complaint on June 11, 2001, seeking to terminate the parental rights of C.S. and J.G. in order to free M.S. for adoption by M.B.
The next contact between C.S. and DYFS occurred on August 3, 2001, when C.S. placed a call from her mother's house and left a message. Ten days later her father called DYFS to report that C.S. had a job and had moved from her parent's house. He provided a new address.
C.S. opposed the guardianship proceeding by DYFS. She returned to New Jersey in May 2002, and submitted to psychological and bonding evaluations. The judge ordered supervised visitation with M.S. on May 15, and M.B. brought the child from Massachusetts to New Jersey for that purpose. It was C.S.'s first contact with her daughter since June 6, 2000. Subsequently six more ...