On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-201-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 25, 2007
Before Judges Winkelstein and Yannotti.
G.A. appeals from an order entered by Judge Bernadette N. DeCastro on October 4, 2006, which terminated G.A.'s parental rights to L.A. and awarded guardianship of the child to the Division of Youth and Family Services (Division) for purposes of adoption. For the reasons that follow, we affirm.
J.M. gave birth to L.A. on January 6, 2003. J.M. was thirty-two years old at the time. The child tested positive for opiates.*fn1 The Division was informed and on January 8, 2003, one of its caseworkers met with J.M. at the hospital. J.M. told the caseworker that she used three ten-dollar bags of heroin each day until she learned that she was pregnant. She continued to use one ten-dollar bag of the drug a day during her pregnancy.
J.M. stated that since April 15, 2002, she had been on probation for possession of heroin. J.M. said that she tried to wean herself off of the drug but no detoxification program would accept her because she was pregnant. J.M. reported that she had been diagnosed as bipolar in 1999 but did not receive treatment because she was in denial about her condition.
J.M. informed the caseworker that G.A. was the father of L.A. G.A. was fifty-nine years old at the time. J.M. said that she and G.A. had been married for about two and one-half years. G.A. was self-employed as a taxi driver, and worked twelve hours a day, six days a week. J.M. asserted that G.A. was aware of her drug use and was upset about it.
The Division filed an abuse and neglect action and sought an emergency order granting custody of the child to the Division. On January 24, 2003, the judge granted the Division's application and entered an order finding that L.A.'s immediate removal from the home was required because J.M. used drugs during her pregnancy; L.A. tested positive for opiates at birth; J.M. was currently using drugs; and J.M. was residing with the child's father. The judge further found that there were no relatives available for placement.
On March 6, 2003, the judge ordered that L.A. would remain in the Division's custody. The judge required J.M. and G.A. to attend psychological evaluations; ordered J.M. to attend a substance abuse treatment program; and required J.M. to submit to random urine screening. On the same date, the judge entered another order finding that J.M. and G.A. had abused and neglected the child, and noted on the order that L.A. had tested positive for opiates at birth.
In March 2003, psychologist Santa A. Gregory, Ph.D. (Dr. Gregory) evaluated J.M. In her report, Dr. Gregory stated that J.M. had admitted she was using drugs when she was pregnant. J.M. reported that she was currently addicted to heroin and last used the drug on the night before the evaluation. She claimed that, at one time, she used prescription drugs to control the symptoms of bipolar disorder and severe panic attacks but G.A. had prevented her from obtaining those drugs. J.M. told Gregory that she used heroin as a substitute for her prescribed medication. Dr. Gregory found that J.M. required detoxification and "an inpatient stay" at a treatment facility. Dr. Gregory concluded, "It is clear that [J.M.] is unable to parent her young daughter at this time."
In May 2003, psychiatrist James J. Ferretti, M.D. (Dr. Ferretti), performed an evaluation of J.M. In a report dated May 27, 2003, Dr. Ferretti noted that J.M. had a twelve-year history of drug involvement. J.M. said that she married G.A. while she was homeless, after having been forced to leave her parents' home. J.M. told Dr. Ferretti that she was hospitalized on more than ten occasions for detoxification and treatment of depression. J.M. stated that G.A. was "extremely" controlling and he would not let her leave the house even to attend meetings of Narcotics Anonymous. J.M. said that she did not intend to continue her relationship with G.A.
Dr. Ferretti made the following diagnosis of J.M.: substance abuse, opiates in remission since January 2003; depression, not otherwise specified (NOS) with anxiety; and borderline personality disorder. Dr. Ferretti noted that J.M. planned to rehabilitate herself, become employed, establish a separate domicile from G.A., and regain custody of L.A. Dr. Ferretti observed that J.M.'s prognosis for recovery was guarded "at best." He concluded that J.M. could not be considered "a viable parenting resource" at that time.
In June 2003, G.A. was evaluated by psychologist Ernesto L. Perdomo, Ph.D. (Dr. Perdomo). In his report, Dr. Perdomo concluded that G.A. has very little insight into his own behavior, and he "tends to be a rather peripheral figure in the family." According to Dr. Perdomo, G.A. said that he was unaware that J.M. was on drugs and only learned about her drug use at the hospital after L.A. was born. Dr. Perdomo observed that G.A. had positive qualities that may help him fulfill his parental responsibilities but in doing so, G.A. would need J.M.'s support as well as services from the Division. Dr. Perdomo opined that G.A.'s ability to effectively parent L.A. will be limited because of G.A.'s lack of insight and his "peripheral involvement in the family[.]"
The court held a compliance review hearing on July 3, 2003. On that date, the judge entered an order that provided L.A. would remain in the custody of the Division and the child would continue in foster care. The judge required J.M. to complete a substance treatment program. The judge ordered G.A. to attend parenting skills training and discuss with the Division's caseworker his plans for the child. The judge additionally ordered that L.A. could be placed with J.M. in her treatment program if J.M. "stabilizes herself" and the program approves the child's placement.
Following the next compliance review hearing on October 2, 2003, the judge entered an order that maintained the Division's legal and physical custody of the child. The order required that J.M. attend an in-patient program at Straight and Narrow (SN), and provided that L.A. could be placed at SN, subject to the program's rules and regulations.
On November 5, 2003, one of the Division's caseworkers met with J.M. at SN. J.M. told the caseworker that she did not want to remain in a relationship with G.A. She claimed that G.A. had provided her with drugs in the past, and abused her both physically and sexually. According to J.M., G.A. was very controlling. J.M. asserted that G.A. had locked her in her room during the last weeks of her pregnancy.
On November 7, 2003, the caseworker spoke with G.A. and he denied these allegations. G.A. said that J.M. was a "bad woman" and he did not want L.A. to be with her. G.A. asked what he had to do to obtain custody of L.A. because J.M. was a "liar" and "she will use drugs again[.]" The caseworker told G.A. that he could be considered an alternative parenting resource if J.M. was unable to care for L.A. After further discussion, G.A. agreed that L.A. could stay with J.M. provided she "stays off the drugs[.]" On November 14, 2003, L.A. joined J.M. at SN, and the Division arranged visitation for G.A.
J.M. continued at SN and, although persons at SN expressed some concern regarding J.M.'s compliance with its rules and regulations, J.M.'s attitude apparently improved. J.M. progressed to the point where she was to be discharged to a substance abuse treatment program at Project Home (PH). J.M. was scheduled to enter PH on May 4, 2004, but on that day, J.M. left L.A. with her parents and did not return for several hours. The Division was contacted.
A caseworker went to J.M.'s parents' home. J.M. was on the phone, speaking with her mother. The caseworker reported that J.M. was crying. J.M. alleged that G.A. had raped her. J.M. admitted that she had used cocaine that day. The Division transported J.M. to PH, and L.A. remained with J.M.'s parents for the night. On May 5, 2004, J.M. obtained a temporary domestic violence restraining order against G.A. She alleged that G.A. had assaulted her physically and ...