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New Jersey Division of Youth and Family Services v. E.P.A.

October 15, 2007


On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Essex County, FG-07-268-05.

Per curiam.



Submitted September 11, 2007

Before Judges Payne and Messano.

E.P.A., the natural mother of a five-year-old daughter, E.A. (fictitiously, Edie), appeals from an order of a judge of the Family Part terminating her parental rights to the child following a contested four-day hearing. D.A., the natural father of the child and husband of E.P.A., has not appealed.

On appeal, the mother concedes that the trial judge addressed each of the interrelated statutory prongs of N.J.S.A. 30:4C-15.1 that govern the matter,*fn1 but she contends that the judge's findings of fact and conclusions of law were manifestly unsupported by and inconsistent with the competent, relevant and reasonably credible evidence, and thus that reversal is required. In a broad-based challenge to the court's ruling, the mother raises the following arguments: (1) the court's determination of lack of parental fitness was inconsistent with the fact that she had been permitted to retain custody of a later-born son; (2) she had complied with the requirements of DYFS and resolved concerns regarding her parenting by the time of a court hearing on September 20, 2004, but reunification did not occur; (3) thereafter, a changing, new and unnecessary array of requirements were imposed in a fashion that unreasonably served to prevent reunification; and (4) the decision by the Division of Youth and Family Services (DFYS) to seek termination was inconsistent with the opinions of its own experts and of social service workers. Following a review of the record and arguments of counsel in light of governing law, we affirm.

The record discloses that Edie was born on June 12, 2001. Both she and her mother tested positive for cocaine, methadone and opiates at the time of birth. Prior to the birth of Edie, E.P.A. had given birth to three other children. In 1990, she gave birth to her first child at the age of sixteen; to a second, premature, child in 1991 who died after nine days; and to her third child in 1998. Before Edie's birth, the two older children had been placed with a maternal grandmother, and upon the grandmother's death, with a maternal aunt and great-aunt, after repeated verified reports of neglect, homelessness, penury, and drug use by E.P.A. On February 15, 2002, eight months after Edie's birth, E.P.A. entered into a voluntary identified surrender of her parental rights to the two older children, and they have been adopted by relatives. A son, born on October 11, 2002, remains in E.P.A.'s custody.

E.P.A. herself had experienced a troubled youth while living at home with an alcoholic mother and incorrigible brothers, one of whom was eventually murdered. In 1986, E.P.A. took an overdose of pills following a fight with her mother. In 1988, when E.P.A. was almost fourteen, her mother requested her removal from the home because of behavioral problems. By 1989, when E.P.A. was fifteen, her school had reported to DYFS that E.P.A. was a suspected drug user. She dropped out of school while in the ninth grade, and has not returned.

E.P.A.'s use of drugs continued, and she identified marijuana, and later, heroin, as her habitual drugs of choice, with occasional use of cocaine and alcohol. Multiple opportunities for drug treatment were rejected. In 2000, E.P.A. completed a drug treatment program at Turning Point, but relapsed on the day after her graduation. She then entered a methadone program, but did not follow through with its services. In September 2001, after the birth of Edie, E.P.A. was again enrolled in a methadone-maintenance program administered by the Essex Substance Abuse Treatment Center. Although she has remained largely drug-free thereafter, she tested positive for opiates and benzocaine on December 13, 2002 and January 2, 2003. E.P.A. has contested an additional test that was positive for heroin, occurring on March 4, 2003, and claimed that she ceased drug use in November 2001. At the time of her son's birth on October 11, 2002, E.P.A. tested positive only for methadone, and in a letter dated June 25, 2003, the Essex Treatment Center stated that E.P.A. had refrained from drug use, except methadone, for seventeen months.

Although the court sought a decrease in and eventual cessation of E.P.A.'s use of methadone, there is little evidence that E.P.A. has achieved that goal, except for one reference in a January 6, 2006 case management order to a drug test conducted on November 18, 2005, which was negative for that substance. Additionally, a December 15, 2005 drug test was negative for methadone, although E.P.A. stated to the test administrator that she was using methadone at the time. No clear evidence exists in the record as to whether E.P.A. remained on methadone maintenance at the time of trial. However, psychologist Leslie Williams noted in his February 2006 report, two months before trial, E.P.A.'s statement that she remained on methadone and went to the Essex Substance Abuse Treatment Center twice a week to procure it.

Edie's father, D.A., tested positive for cocaine in September 2005, and he was terminated from the Essex Substance Abuse program upon incarceration in December 2005.

In addition to her drug addiction, E.P.A. has had criminal involvement. Although the record is not entirely clear, it appears that E.P.A. has a history of five arrests, three indictable convictions,*fn2 and two violations of probation. Her convictions include one, in 1995, for third-degree distribution of CDS in a school zone and a conviction, in 1998, on a charge of first-degree robbery. She has spent more than one year in jail and state prison. Open warrants for the arrest of E.P.A. as the result of violations of probation on the robbery charge and the CDS offense remained unresolved until April 2005. A 2001 charge of simple assault was resolved on December 23, 2004. Additionally, open warrants remained for a lengthy period for the arrest of Edie's father, D.A., on charges of criminal trespass, panhandling, and possession and distribution of a hypodermic needle.*fn3 Fingerprinting of E.P.A. and D.A., initially sought on November 17, 2004 and then on January 19, 2005, still had not been completed by the parents on March 30, 2005.

At the time of Edie's birth in 2001, E.P.A. was living with D.A. at a "welfare hotel" in Newark, where the child was born without medical assistance. Neither E.P.A. nor D.A. was employed, neither had permanent housing, and D.A., like E.P.A., was drug-addicted. In late October 2002, housing was approved for the family, and they remained in the same apartment ...

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