On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FG-13-61-05.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2006
Before Judges Axelrad, Payne and Sabatino.
Defendant S.A., the mother of K.A.A. (fictitiously, Kate), appeals from the entry of an order of guardianship that terminated her parental rights to the child. On appeal, she argues that insufficient credible evidence was presented to clearly and convincingly establish the first, second and fourth prongs of the "best interest" test initially formulated by the Court in New Jersey Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:4C-15.1(a). Because we agree that the proofs were in some respects inadequate, we reverse.
S.A. is addicted to heroin. On May 17, 1999, she gave birth to a son, J.A., and on April 8, 2004, her parental rights to J.A. were terminated in a default judgment. Prior to termination, S.A. had been offered services on multiple occasions by the New Jersey Division of Youth and Family Services (DYFS) in an effort to treat her addiction. Although S.A. claims that she remained clean for seven months following one course of treatment, S.A. was in large measure noncompliant, and the services were ultimately unsuccessful. S.A. testified at the termination hearing in the present matter that Kate's father, whom she married on March 2, 2000, served as the trigger for her use of drugs. S.A. testified additionally that she now wants nothing to do with her husband, and that she cannot "stand him."*fn1
In May 2002, S.A. was arrested for assault on a police officer in violation of N.J.S.A. 2C:12-1b(5)(a).*fn2 On April 2, 2003, she was arrested for possession of methadone without a prescription. She was indicted for that crime, and on October 6, 2003, she pled guilty. On February 13, 2004, she was sentenced to one year of probation conditioned upon the maintenance of full-time employment. Following a violation of that probation on grounds and at a time that are not stated in the record before us, she was sentenced on June 4, 2004 to a prison term of four years.
Two months later, Kate was born while S.A. was serving her sentence. S.A. testified at the hearing that she had used methadone after the child's conception because she had been informed by her doctor it was less dangerous to the child than heroin. She also testified that she had ceased the use of drugs entirely upon her imprisonment. However, records suggest that she was being prescribed methadone while in custody when the child was born.
Because of S.A.'s imprisonment, DYFS was notified upon Kate's birth, and supervision of her care was immediately assigned to that Division's Adoption Resource Center (ARC). Following temporary relinquishment of custody by S.A., a foster mother was identified, and that foster mother took custody of Kate upon her release from the hospital on August 19, 2004. At the time, Kate was classified as medically fragile because she had tested positive for the hepatitis-C antigen.*fn3 She also suffered from symptoms of drug withdrawal, which according to the foster mother, continued for the first three or four months of her life. Kate remains in the foster mother's care, and the mother has testified that she wishes to adopt her.
Twenty days after Kate's birth, DYFS filed a verified petition for guardianship. A hearing was held in the matter on February 23, 2005, when Kate was six months old. Testimony was offered by the foster mother, an employee of the ARC who had been assigned Kate's file a month earlier, and S.A. At the time of the hearing, S.A. was residing in the Millicent Fenwick halfway house in Paterson, which she had entered on February 3, 2005.*fn4 S.A. testified that her expected release date was August 20, 2005.
Evidence at trial disclosed no contact between DYFS and S.A. after Kate's birth, and it appears from the court's opinion in the matter that an order was entered pursuant to N.J.S.A. 30:4C-11.2a(3) relieving DYFS of any obligation to make reasonable efforts to prevent placement as the result of the termination of S.A.'s rights to her older child, J.A.*fn5 S.A. testified at the hearing that she had telephoned DYFS on a number of occasions, but had never received a return call. She testified that her mother had called as well, without response. S.A. stated that it was "[l]ike I don't exist or something."
At the hearing, S.A. stated that she wanted to gain custody of Kate, that she planned to reside upon release with her father, who lived along with other relatives in Lakewood, or to obtain a job and live in Paterson. She testified that she anticipated obtaining employment in April, and that she would not be released from the halfway house without evidence of adequate housing. However, she acknowledged that she would not be able to care ...