On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-0273-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
Defendant D.H. appeals from the trial judge's January 26, 2007, order terminating her parental rights and awarding the Division of Youth and Family Services (D.Y.F.S.) guardianship, care, custody and control of C.D., her five-year-old daughter. As first enunciated by the Supreme Court in Div. of Youth and Family Services v. A.W., 103 N.J. 591, 604-05, 608, 610 (1986), and subsequently codified by the Legislature in N.J.S.A. 30:4C-15.1(a), in order to terminate parental rights, D.Y.F.S. must demonstrate by clear and convincing evidence
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
In this case, D.H. contends the trial judge erred in concluding that D.Y.F.S. had proven by clear and convincing evidence the second, third, and fourth prongs of the statutory test. We have considered defendant's contentions in light of the record, arguments of counsel, and applicable legal standards. We affirm.
C.D. was born on December 14, 2001, to D.H. and her paramour, P.D. D.H. was married at the time to J.H., with whom she had another daughter, M.H., but had separated from him in July 2000.
The procedural record and the testimony at trial revealed that D.Y.F.S. became involved with the family on February 4, 2002, following allegations of domestic violence and abuse of prescription drugs. At that time, D.H., P.D., and C.D. were living together in P.D.'s mother's home, but the allegation included a complaint that D.H. failed to provide proper care and a stable home for C.D. because she was "back and forth" between P.D.'s and J.H.'s residences.
D.Y.F.S.'s investigation disclosed an incident of domestic violence that occurred on February 2, 2002, that led to P.D.'s arrest. P.D. was alleged to have punched D.H. in the face and restrained her while she was holding C.D., who at the time was only two months old. Despite several attempts, DYFS was unable to contact D.H. and schedule a meeting with her until February 25, 2002. By that date, D.H. along with C.D. had moved back into J.H.'s home and the D.Y.F.S. caseworker observed during a home visit that both M.H. and C.D. seemed to be receiving appropriate care. During the visit, D.H. confided to the caseworker that P.D. had been abusing prescription drugs, had been violent with her in the past, and had been arrested for incidents of domestic violence several times during their relationship. Nevertheless, D.H. acknowledged she never sought a restraining order against P.D. and continued to see him with their daughter. D.H. also denied abusing drugs but refused to complete a substance abuse evaluation. Although D.Y.F.S. did not substantiate the allegations of neglect, the case remained opened for supervision due to concerns of possible domestic violence and parental substance abuse.
On June 26, 2002, D.Y.F.S. received a second referral reporting allegations of domestic violence. The referral also contained reports that P.D. had sold and abused drugs, had hit C.D., now six months old, and that D.H. had tested positive for drugs during her pregnancy. D.Y.F.S.'s investigation revealed that D.H. had used pain medication for a long period prior to her pregnancy, although she denied any current use. The medical records of C.D.'s birth did not indicate any pre-natal drug exposure. D.H. also denied that P.D. used drugs. Once again, D.Y.F.S. did not substantiate any allegation of abuse or neglect and left the case open for supervision.
On September 4, 2002, D.H. and P.D. submitted to substance abuse evaluations and drug screens and both tested positive--D.H. for cocaine and marijuana use and P.D. for cocaine use. Following the positive drug screens, D.Y.F.S. assessed the household and concluded it posed a serious risk of harm to children; D.Y.F.S. also referred D.H. for substance abuse evaluation, and referred P.D. to outpatient substance abuse treatment.
On October 18, 2002, D.H. and P.D. signed a D.Y.F.S. case plan, agreeing to attend substance abuse treatment scheduled to begin in January 2003. Pursuant to the plan, P.D.'s mother would supervise all contact between C.D. and her parents. Beginning in January 2003, D.H. and P.D. reported to D.Y.F.S. that they had begun the intake process to attend substance abuse counseling at JFK Behavioral Health Center (JFK) and that they had produced negative urine screens. D.H. subsequently reported to D.Y.F.S. on July 9, 2003, that she and P.D. had transferred their outpatient treatment to New Brunswick Counseling Center (NBCC).
Between July 2003 and November 2003, the family continued to meet with a D.Y.F.S. worker on a monthly basis. C.D. appeared healthy and well fed during the visits. Although D.H. and P.D. continued to report that they were attending outpatient substance abuse programs, and that their urine screens were negative, these claims were untrue and both ultimately acknowledged that they had not been participating in any drug treatment program.
On January 9, 2004, D.H. reported to the police that P.D. had kicked her in the back while she was descending the stairs at P.D.'s mother's home. Although she was holding C.D. at the time of the incident, the child was not injured. D.Y.F.S. made several unsuccessful attempts to meet with the family from January 2004 to March 2004. On April 1, 2004, D.Y.F.S. learned that contrary to the case plan, D.H. and C.D. had been living with D.H.'s mother. She had contacted D.Y.F.S. to report continued incidents of domestic violence between P.D. and D.H., including occasions when P.D. tied up D.H. and burned her with cigarettes.
On April 7, 2004, D.H. signed a second D.Y.F.S. case plan, once again agreeing to attend substance abuse treatment, and limiting all contact between C.D. and herself to supervised visits in the presence of D.H.'s parents, with whom they were now living. D.H. also informed D.Y.F.S. that she and P.D. had failed to complete their substance abuse program at NBCC, and had been using heroin until January 2004; she denied, however, any current use. D.H. reported to the caseworker that P.D. had become violent toward her several times, showing cigarette burns on her hands and arms, thus substantiating her mother's April 1, 2004, allegations. D.Y.F.S. referred D.H. to a domestic violence program.
The following day, with C.D. present, P.D. forced his way into D.H.'s parents' home by holding a knife to D.H.'s back. There, he stole money and property from the home while threatening to kill D.H. and her mother. P.D. was arrested ...