On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Hudson County, FG-09-128-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2008
Before Judges Payne and Messano.
Defendant J.V., the mother of boys, B.G. and C.G., and of girls, D.G. and A.V., appeals from an order of the Family Part terminating her parental rights to the two boys, but not to the two girls, who were also the subjects of guardianship litigation filed by the New Jersey Division of Youth and Family Services (DYFS or the Division).*fn1
On appeal, J.V. contends that the Division failed to meet its burden of demonstrating, by clear and convincing evidence, the four prongs of the best interest of the child standard set forth in N.J.S.A. 30:4C-15.1, and thus that termination of her parental rights to the boys should not have occurred. The law guardian for the boys has likewise contested the termination decision, arguing that the Division's proofs with respect to the second and fourth prongs of N.J.S.A. 30:4C-15.1 were inadequate.
The Division has not appealed from the order denying termination of J.V.'s parental rights to the two girls. We agree with the Law Guardian's position and reverse.
The record discloses that a son, B.G. (fictitiously, Ben) was born to J.V. on July 31, 2001 and another son, C.G. (fictitiously, Charles), was born on March 5, 2004. A daughter, D.G. (fictitiously, Donna), was born on March 17, 2003, and an additional daughter, A.V. (fictitiously, Ann), was born on February 10, 2007, after litigation in this matter was commenced.*fn2 A fifth child, A.G., was born when J.V. was thirteen years of age. The child was fathered by J.G., the twenty-two-year-old boyfriend of J.V.'s mother, who is also the father of the children who are the subject of this action. A.G. is in the legal custody of J.V.'s maternal grandmother and is not involved in the present proceeding.
Although J.V. had been known to DYFS previously, her history with the Division, relevant to the present proceedings, commenced with a referral in 2002, which was determined to be unfounded, followed by a further referral in 2004. Although it, too, was determined to be unfounded, homemaker services were instituted by DYFS, commencing in August 2004 and continuing to March 15, 2005, to ensure that the children were being properly fed and that their medical appointments were being kept. Although there was concern that Donna was failing to thrive, that concern was later determined to be unfounded. Homemakers reported that J.V.'s home was neat, the children were well-fed and otherwise well-kept, and that J.V.'s interactions with her children were appropriate and loving. At this time, J.V. had separated from the children's father, J.G., as the result of episodes of domestic violence. A permanent restraining order against the father was in place, and drug charges against him were pending. He was subsequently found guilty and incarcerated. There is no evidence of long-term reunification between the two parents, and the termination of J.G.'s parental rights to the children has not been appealed. J.V.'s relationship with her mother has been tempestuous. Additionally, J.V.'s brother, an alleged drug dealer who is also claimed to be a member of the Latin Kings gang, has disrupted J.V.'s life with threats against her and, on occasion, DYFS.
Nonetheless, a DYFS contact sheet, which appears to be dated April 26, 2005,*fn3 contains the following statement:
[J.V.] is a very nurturing mother to her children. She provides emotionally for [her] children. She plays with children and has been observed displaying affection toward the children, hugs and kisses. [J.V.] has also been observed feeding the children and the food appears to be nutritional and ample in portion for children. Worker has also observed that there is always food in the home. . . . Children do not appear to be maltreated or malnourished. [Donna] is small for her size but child responds to stimulant. She plays and talks to mother and siblings.
* * * [J.V.] has the life skills to provide [a] stable, secure environment for her children, free from abuse/neglect. [J.V.] has maintain[ed] [a] stable living arrangement for her children on a regular basis.
Children are always clean and neat with good hygiene. Their social skills are adequate.
Children appear to be reaching their developmental milestones age appropriately.
On May 6, 2005, a further referral was made in which it was claimed that J.V. was abusing marijuana and failing to provide an adequate caregiver for her children, having left them in the care of an alleged runaway teenager, a charge that was found on investigation to be incorrect. Again, no neglect was found.
However, DYFS, which at that time was concerned about J.V.'s immaturity and potential abuse of alcohol and marijuana, obtained J.V.'s consent to resume homemaker supervision (assistance that appears not to have been immediately implemented as the result of the unavailability of personnel) and to obtain a certified alcohol and drug counselor (CADC) evaluation. A urine test at about that time was positive for marijuana.
After missing CADC appointments on June 17 and June 28, a CADC evaluation occurred on July 5, 2005. As the result of J.V.'s admission that she occasionally smoked marijuana, it was recommended that she be referred to the St. Mary Hospital Giant Steps program for outpatient substance abuse care. J.V. was accepted into the Giant Steps program and scheduled to begin weekly outpatient treatment at the hospital on August 31, 2005, for a total of twenty-four to thirty-six sessions. Just prior to the commencement of treatment, J.V. admitted to her DYFS caseworker that she had smoked a blunt on the previous evening and that she had a problem with marijuana.
During the same period, J.V. was referred to Family Preservation Services, which was engaged to visit J.V.'s home on a daily basis to provide J.V. with skills necessary to discipline her children, to assist her in developing non- confrontational communication skills, and to establish effective anger management. However, its services were concluded in September 2005 following J.V.'s refusal to permit a worker to remain overnight and her decision to place her children with relatives, claiming that she was overwhelmed and needed to put her life in order by obtaining in-patient drug treatment.
In an undated letter, St. Mary personnel notified DYFS that J.V. had tested positive for marijuana while attending out-patient group counseling on September 5 and 13, 2005, and that she had failed to attend the following three group counseling sessions, without explanation. She was discharged from the program as the result of noncompliance in October 2005.
On September 22, 2005, the court entered an order granting temporary custody to DYFS of J.V.'s three children, primarily as the result of J.V.'s acknowledged use of marijuana. J.V. was ordered to undergo psychological and substance abuse evaluations, and to submit to random urine screenings.
On November 7, 2005, J.V. returned to Giant Steps to seek re-enrollment, but was not immediately accepted because of a lack of openings. At this time, J.V. also enrolled in parenting classes, attending sessions commencing on November 7, 2005 and completing the six sessions on December 12, 2005. She also attempted to obtain more intensive drug treatment from various sources, but was informed that her addiction did not warrant such treatment.
Although the three children had remained in the care of various relatives in the period from September to November 2005, on November 15, 2005, Ben and Charles were removed from their relative placements, because the relatives could no longer care for them, and they were placed in separate foster homes.*fn4 They were reunited in a single foster home on or about April 18, 2006, just one year prior to trial. Ben receives counseling services on account of his behavior and speech difficulties. However, the record indicates that the boys have otherwise adjusted well to their foster placement. Their foster mother seeks to adopt.
In January 2006, J.V. was again accepted into Giant Steps, commencing treatment on January 31, 2006 for a projected sixteen sessions. On March 9, 2006, she was referred to a ten-month intensive program administered by Project Second Chance at Jersey City's Christ Hospital for more intensive psychological counseling and substance abuse treatment, but she was not accepted into that program until August 2006. She commenced counseling and treatment on August 16, 2006.*fn5 She has tested clean ever since and claims to have been abstinent since March 2006. J.V. was reported as having been in consistent attendance at the Second Chance program, and as actively participating in group and individual sessions. Her progress reports have been excellent, and she was scheduled to complete the program between May and July 2007, shortly after the conclusion of the termination trial. According to a March 29, 2007 letter from Second Chance,
[J.V.] has shown herself to be motivated to make positive changes in her life and is eager to be a role model for her children. She has come a long way in her ...