On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-89-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2007
Before Judges Lisa and Lihotz.
This is a termination of parental rights case. We decide in this opinion the consolidated appeals of M.B., the mother, and C.M., the father, of the judgment terminating their parental rights to their son, C.W.M., who was born on October 28, 1999. Appellants argue that the Division of Youth and Family Services (DYFS or Division) failed to establish by clear and convincing evidence all four prongs of the best interest test. As part of their argument under the third prong, they contend that the judge erred in failing to properly consider kinship legal guardianship as an alternative to termination. They further argue that the trial judge erred in allowing into evidence the report and testimony of the Division's psychiatric expert, Dr. Alexander Iofin, because of the late delivery of the report. We reject these arguments and affirm.
M.B. and C.M. were never married. At the time of C.W.M.'s birth, they were involved in an ongoing relationship, living in the home of C.M.'s parents. M.B. tested positive for marijuana during her pregnancy. Four days after C.W.M's birth, the Division received a referral indicating that M.B. and C.M. were involved in a domestic violence incident, during which C.M. was holding C.W.M. The referral also indicated that both parties had a history of drug abuse. After an investigation, the Division did not substantiate the allegations of abuse and neglect. However, both parties were referred to Easter Seals for a determination of the necessity of drug treatment. The Division received another referral in 2002, alleging abandonment, but that was also unsubstantiated after investigation.
On June 14, 2004, the Division received a third referral, alleging that the child was being neglected and was not receiving appropriate medical or dental care, and that the parents were substance abusers who habitually slept all day. A caseworker observed that the paternal grandparents' home was clean and the child was observed to be well, clean and appropriately dressed. M.B. and C.M. denied the allegations, but agreed to complete substance abuse evaluations.
The Division's investigation revealed information from the local police department that the parties had a history of domestic violence, simple assault, self-inflicted wounds, possession of marijuana and drug paraphernalia, and missing prescription drugs. The investigation further revealed, based upon contact with the family's doctor, that the child had not been seen since October 19, 2001. The doctor also noted his concern that C.M. was not receiving proper treatment for his diagnosed bipolar disorder.
On November 30, 2004, the Division received a call from C.W.M.'s maternal aunt, J.B., who advised that she had recently taken over the care of C.W.M. M.B. and C.M. had been thrown out of the paternal grandparents' home after they stole the grandmother's wedding band to purchase drugs.
A caseworker visited J.B.'s home, where she lived with her husband and brother. The four-bedroom single-family home was clean and contained adequate food and space, allowing C.W.M. to have his own room. C.W.M. was clean and appropriately dressed. J.B. did not know the whereabouts of either parent.
On December 7, 2004, C.W.M. was seen by a dentist and had six teeth extracted as a result of severe infection. Based upon these events, the allegations of neglect were substantiated.
On December 8, 2004, M.B. and C.M. went to the DYFS office. They confirmed they had been thrown out of the grandparents' home and C.M. admitted stealing his mother's wedding band. Both parents were unemployed, and because they had nowhere to live independently, they said they would be staying with a close friend temporarily. They denied drug use and agreed to submit to urine tests (which were negative) and substance abuse evaluations. They signed a fifteen-day consent form, allowing placement of C.W.M. with J.B.
The substance abuse evaluations were conducted for M.B. on December 9, 2004 and for C.M. on December 10, 2004. M.B. admitted to smoking marijuana and taking prescription pain medications, but denied having a substance abuse problem. She was referred to Open Door for outpatient treatment to address her sedative use and develop "a substance free social network." C.M. admitted to smoking marijuana and taking Zanax and Adderall. He stated he attended a detox program at Bergen Pines in February 2004, but failed to follow through. He was also referred to Open Door to address his addiction to sedatives and to develop a "sober, clean social network."
On January 4, 2005, J.B. informed DYFS that M.B. and C.M. had been thrown out of their friend's house for stealing. On January 10, 2005, M.B. informed the Division she was staying with her brother and C.M. was staying with a friend. She also advised that she contacted Open Door, but did not attend because she needed $120. M.B. was referred to CACD for assistance, and on January 20, 2005, she advised DYFS she had begun the process of enrollment.
On February 9, 2005, psychological evaluations of both parties were conducted by Dr. Karen Wells. With respect to C.M., she noted his history of prescription drug use and previously diagnosed bipolar disorder, and concluded:
The forestated concerns all highlight [C.M.'s] emotional and psychological instability. His personal functioning is less than adaptive, with indications that he has neither received any treatment services nor appreciates the extent and nature of his own difficulties. While [C.M.] recognizes that he has made "mistakes" in his past, there are indications that he is either minimizing or being less than honest in his representation that these difficulties continue.
There is no clinical information or test materials which support [C.M.'s] ability to resume parental care and responsibility for [C.W.M.]. He has significant personal, emotional, and psychological functioning which greatly hamper his ability to provide for his own needs. Clearly, it is clinically contraindicated to place [C.W.M.] in his care, as his son would be exposed to neglectful conditions, with the potential of accidental injury or harm. The risk posed to [C.W.M.] cannot be underestimated if he were placed in [C.M.'s] care. It is recommended that until [C.M.] begins to have a recognition and appreciation of the extent and nature of his difficulties as well as a regard for the potential consequences affiliated with these difficulties, [C.W.M.] should continue to remain independent of his care. Moreover, as there are reports that [C.M.] continues to engage in illicit substance abuse, it is strongly recommended that only supervised visits would occur between him and [C.W.M.].
It is noted that [C.M.] will need to engage in substance abuse treatment, including a need to rule out inpatient treatment. . . . [I]t is the clinical impression of the present examiner that [C.M.] is neither ready nor committed to modify his lifestyle and make significant changes. As such, it is also apparent that the benefits of treatment cannot be fully realized or derived for him.
With respect to M.B., Wells noted her history of involvement with illicit drugs and concluded:
It is recommended that [M.B.] would complete substance abuse treatment services, with ongoing monitoring to ensure that she is abstinent. It is the clinical impression of the present examiner, however, that [M.B.] is neither ready nor committed to abstaining from drugs at this time in her life. She has a lengthy history of drug involvement, has not experienced significant consequences to prompt abstinence, and is involved in a relationship with a paramour who not only supports her drug use, but is also drug involved himself. [M.B.] has utilized drugs to cope with life difficulties, recreationally, and to ward off pain. There are no indications that her drug use is significantly troublesome to her. Moreover, [M.B.] is comfortable with her son being in her sister's care, disclosing that she would trust both her life and that of her son to her sister.
It is recommended that [the Division] would provide and [sic] supportive services to [M.B.'s] sister so as to further stabilize [C.W.M.'s] placement with her. In the interim, not only is it recommended that [M.B.] would engage in substance abuse treatment, but that she would also attend individual psychotherapy as there are many issues warranting such involvement. . . . In regard to contact with [C.W.M.] an unsupervised contact is not supported.
Continued monitoring by the Division in the Spring of 2005 revealed that C.W.M. was attending half-day kindergarten, he appeared to be very well-adjusted and happy in J.B.'s home, and he spent some weekends at the home of his paternal grandparents, which worked out well. The parents were allowed liberal visitation, to take place in the caretaker's home and under her supervision. The parents visited C.W. very infrequently. When they did, C.W.M. enjoyed seeing them. J.B. and her husband informed the caseworker that they wished to adopt C.W.M. if his parents did not get their lives together. They expressed their concerns that M.B. and C.M. were not in treatment, were not employed, and were not making any attempts to see or call C.W.M.
On March 24, 2005, the caseworker contacted both parents. M.B. said she would be starting drug and alcohol treatment the following Monday at Open Door. However, she never showed up for that treatment. On April 8, 2005, the Division was notified that C.M. was thrown out of his parents' home again for stealing. The living arrangements of both parents were unknown at that time.
On May 12, 2005, both parents failed to appear at a compliance review hearing, as a result of which the court ordered suspension of their visitation rights until it was established that they entered treatment. At the hearing, the caseworker learned that the parents were being housed by Welfare at a local motel. The same day, the caseworker went to the motel and met with the parties. She informed them of the suspension of visitation until after they successfully entered treatment.
C.M. said he would begin treatment at Open Door on May 16, 2005 and M.B. would begin treatment at JFK Medical Center on May 19, 2005. However, on May 20, 2005, the Division learned that M.B. failed to show up for treatment at JFK, and on June 7, 2005, the Division learned that C.M. had missed five sessions at Open Door since May 23, 2005. Throughout the summer months of 2005, both parties were noncompliant with drug treatment. C.M. enrolled in a methadone treatment program in New Brunswick, but left after only a few days. M.B. tested positive for opiates, and C.M. tested positive for opiates and cocaine on several occasions.
During this time, M.B. received an $11,000 inheritance, which she later claimed she used to purchase a car and pay off fines and warrants, rather than putting any portion of the money towards obtaining stable housing for potential reunification of the family. The parties were evicted from the motel in July 2005. They failed to appear at a compliance review hearing on August 4, 2005, and suspension of their visitation rights was continued, pending their successful entry into treatment programs.
In August 2005, J.B. gave birth to a baby boy, and according to J.B., C.W.M. wanted to be the baby boy's brother, not cousin. In later evaluations, C.W.M. referred to this child as his brother. In an October 4, 2005 visit, the caseworker discussed with J.B. and her husband the difference between adoption and kinship legal guardianship.
M.B. and C.M. failed to appear for another compliance review hearing on October 13, 2005, as a result of which the court relieved DYFS of its responsibility to exercise reasonable efforts to reunify the family until such time as the parties appeared before the court. After the parties again failed to appear on December 1, 2005, the court directed that a guardianship complaint be filed.
At this point, the Division had not heard from either parent since August 2005. Its investigation revealed that family members believed the parents were living in New York. J.B. reported that she once got a phone call from a homeless shelter to verify that she had C.W.M. C.M.'s mother reported that she saw M.B. and C.M. walking down the street in New York and that they appeared to be homeless. A family member reported that C.M. was in jail for petty larceny and M.B. was living in a homeless shelter.
On February 27, 2006, the Division filed a complaint for guardianship, seeking termination of the parental rights of M.B. and C.M.
On March 4, 2006, the Division received a message stating that C.M. and M.B. checked into a detoxification unit at New York's Metropolitan Hospital. On March 6, 2006, a caseworker contacted the hospital and eventually spoke with C.M. over the telephone. The caseworker informed C.M. of the status of court proceedings and sent him copies of relevant court documents. C.M. stated that both he and M.B. had been homeless for the past six months and that they intended to attend twenty-eight-day inpatient programs after their release from Metropolitan.
On March 14, 2006, M.B. and C.M. were referred to Kingsboro Addiction Treatment Centers' twenty-eight-day inpatient program. They completed the program and were referred to Damon House for outpatient treatment. Damon House, located in Brooklyn, New York, offered a full six-month community service program.
On May 8, 2006, the parties appeared before the court at a case management hearing. At that time, the court ordered that the Division's reasonable efforts be reinstated, that reports from M.B.'s and C.M.'s treatment programs be submitted, and that supervised visitation be resumed.
On May 24, 2006, a caseworker met with J.B. and her husband. The caseworker reported that C.W.M. appeared to be "happy and healthy" and that he was doing very well in school. J.B. expressed her concern about the recent court proceedings, especially the fact that the paternal grandparents were now urging kinship legal guardianship. The caseworker explained that the Division was continuing to pursue adoption as the goal.
On June 20, 2006, the Division received notification that M.B. was thrown out of Damon House after she became involved with another patient, contrary to program rules. As it turned out, M.B. married one individual, but hid that information from the program. She then sought a divorce from that individual and began a relationship with another patient. Thus, the relationship between M.B. and C.M. was no longer ongoing. At this time, C.M. informed the caseworker that he would seek sole custody of his son, that he intended to leave Damon House to find another program in New Jersey, and that he intended to find a job. The caseworker warned C.M. that following through with those plans would not result in a positive discharge from Damon House.
In July 2006, the Division received a call from M.B. who reported that she moved to Pennsylvania with the person she met at Damon House and had not sought referrals to a new program. The caseworker warned her that she was jeopardizing her chances of getting her son back by not completing treatment at Damon House and not seeking referral to another treatment program.
On August 21, 2006, C.M. left Damon House without completing the program. C.M. moved back to his parents' home in New Jersey with the stated intention of pursuing employment at Home Depot, which never materialized.
On August 22, 2006, C.M. appeared at a case management conference, but M.B. did not. The court granted C.M. continued supervised therapeutic visitation, to be supervised by the Division. The court temporarily suspended M.B.'s visitation rights.
On three dates in September and October 2006, C.M. visited with C.W.M. under the supervision of a DYFS caseworker. C.W.M. was happy to see his father, and they interacted appropriately.
On September 18 and 19, 2006, Dr. Alan Gordon conducted psychological evaluations of C.M. and C.W.M., and a bonding evaluation between C.M. and C.W.M. Gordon also conducted a bonding evaluation between C.W.M. and J.B. ...