On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FN-07-327-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges Wefing, Parker and Lyons.
In these back-to-back cases, the Division of Youth and Family Services (Division) and the Law Guardian were each granted leave to appeal from an order entered on May 15, 2007 continuing the children in the Division's custody and foster care, but allowing the biological mother, L.N., partially supervised overnight visits. The Division was also granted leave to appeal from the trial court's refusal to sign an order to show cause to initiate guardianship proceedings against L.N. We reverse and remand for further proceedings.
M.N., born on December 11, 2005, is L.N.'s sixth child. Her five other children have been removed from her custody either voluntarily or involuntarily as a result of L.N.'s drug and alcohol abuse, inability to parent the children and domestic violence perpetrated on her by J.M., father of all six children.*fn1
The facts relating to M.N. were set forth in our prior opinion in Docket No. A-4986-05T4, rendered on March 7, 2007, in which we affirmed the trial court's orders of March 10 and April 3, 2006, finding that M.N. was an abused or neglected child who should remain in foster care under the custody and supervision of the Division.*fn2
M.N. was born on December 11, 2005. On December 15, 2005, while the child was still a patient at University Hospital in Newark, the Division commenced this action seeking a determination that the child was "abused or neglected," as defined by N.J.S.A. 9:6-8.21, and an order placing M.N. under the Division's supervision, care and custody. The Division's verified complaint asserted, among other things, that L.N. was an unfit parent because she no longer had custody of any of her five other children, had troubles in the past with drugs and alcohol, and had been involved in episodes of domestic violence.
L.N. was represented by counsel at the hearing on January 5, 2006 which was the return date of the December 15, 2005 order to show cause, and all other events thereafter. The judge ultimately rejected L.N.'s application for return of the child to her custody and found, after conducting an evidentiary hearing on March 10, 2006, that M.N. was an abused or neglected child, N.J.S.A. 9:6-8.21, by chiefly relying upon the past terminations of L.N.'s parental rights to her other children, her past history of substance abuse, and her uncertain housing circumstances. Immediately after making those findings, the trial judge heard testimony and received evidence concerning the disposition of the child in light of his finding of abuse and neglect. He concluded that the child should remain in foster care and denied L.N.'s motion that the child be returned to her.
In addition, we observe that the trial judge's finding that M.N. was an "abused or neglected child," was more than amply demonstrated by the evidence adduced at the fact-finding hearing on March 10, 2006. In seeking a finding that M.N. met the definition contained in N.J.S.A. 9:6-8.21(c)(4), the Division was only required to prove by a preponderance of the evidence that M.N. was a child "whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or guardian to exercise a minimum degree of care" (emphasis added). In this regard, "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of another child." N.J.S.A. 9:6-8.46(a)(1). The fact that L.N. was previously found to be unfit provided ample support for a finding that
M.N. met the definition of an "abused or neglected child." This circumstance, as well as the other evidence presented, provided an adequate basis for the judge's findings and ultimate disposition in this matter, and we have been provided with nothing that would warrant our second-guessing of that determination.
The law guardian and the Division then moved to waive the requirement that the Division make reasonable efforts to reunite M.N. with her mother. That motion was denied on March 27, 2006. In a written opinion, the trial court acknowledged that L.N.'s parental rights to her five other children had been voluntarily or involuntarily terminated, but cited two reasons for its decision to deny the Division's motion:
First, [L.N.] has now completed an entire year of successful drug treatment. This successful year would appear to indicate that 'the health and safety of the child' may not be as seriously endangered as was originally thought. See N.J.S.A. 30:4C-11.3. Of course, if [L.N.] is still seeing [J.M.], or if she cannot demonstrate stable housing, [M.N.'s] health and safety would be endangered; these issues need to be resolved at trial, together with several issues raised by the law guardian's extensive brief, such as [L.N.'s] apparently angry parenting style with [C.N.], which could lead one to conclude that she would parent [M.N.] similarly.
Secondly, in addressing "the child's need for permanency", another factor listed by N.J.S.A. 30:4C-11.3, the court notes that [M.N.] was born only three months ago, which puts her in a far different situation than [C.N.] who was born three and a half years ago and [S.N.] who was born one and a half years ago. As the S.A. case pointed out, it is much more important to work towards reunification in the early months before a child may have bonded with foster parents, and already achieved some degree of permanency.
The law guardian's motion for leave to appeal the March 27, 2006 decision was denied.
The supervision case continued and a permanency hearing was conducted on November 8 and 9, 2006. In a written decision rendered on November 28, 2006, the trial court rejected the Division's permanency plan. The court set forth L.N.'s lengthy history of involvement with the Division and the judicial system, including the termination of parental rights to her five other children and her long history of domestic abuse at the hands of J.M., the father of all six children. Included in the court's review was an incident that occurred on October 20, 2004, when J.M. threatened to kill her and "started to punch her with a closed fist on her face, back of her head, neck and upper back repeatedly . . . . grabbed her behind her head and slammed her head on the bathroom wall several times." The trial court noted that "[d]espite what happened in October 2004, [L.N.] refused to end the relationship with [J.M.]." Indeed, the evidence demonstrated that L.N. went to great lengths to hide her continuing relationship with J.M.
The court further noted in its November 28, 2006 opinion that L.N. "has fought a lifelong battle with substance abuse." Nevertheless, she denied "ever using drugs" during a psychological evaluation with Dr. Robert McMillan in 1996; she denied using drugs in 1998, even when she tested positive for cocaine; she denied drug use during three separate evaluations in March, May and November 1999, but tested positive on each occasion. In 1999, three years after her two oldest children were placed in foster care, L.N. finally entered an outpatient program. In 2002, however, she acknowledged using cocaine while she was pregnant with S.N. and living at the YMCA with C.N.
In the November 28, 2006 opinion, the trial court noted that Frank Dyer, Ph.D., a licensed psychologist, evaluated L.N. on numerous occasions on behalf of the Division. In 1999, Dr. Dyer diagnosed L.N. as having probable drug and alcohol problems and an Axis II diagnosis of Mixed Personality Disorder with Histrionic, Borderline, and Schizotypal Features. [She] was found to be impulsive, manipulative and eccentric. Her thinking processes were found to be loosely tied to reality and it was felt that she relied upon a crude denial system to filter her thoughts and perceptions.
The judge further noted that six years later, in his June 2005 report, Dr. Dyer concluded:
In regard to the question of parental fitness, it is my opinion to a reasonable degree of ...