On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FG-09-258-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Grall.
E.C. and R.M. both appeal from orders terminating their respective parental rights to their son J.M. On our own motion, we consolidated the appeals. Because the trial court's decision is "based on clear and convincing evidence supported by the record," we affirm. N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 511 (2004).
E.C. and R.M. are the biological parents of J.M. E.C. also has two older children, D.R. and S.R. Although the Division of Youth and Family Services (DYFS) also sought termination of E.C.'s rights to D.R. and S.R., the trial court concluded that DYFS did not establish that termination was in the best interest of those children.*fn1
According to E.C., she first tried heroin in 2004 after observing R.M. use the drug. Prior to that time, her drug of choice was alcohol, which she started using at age fourteen and abusing shortly thereafter. E.C. admits that she quickly became dependent on heroin. When R.M. and E.C. met, he was serving a sentence of probation imposed as a consequence of his conviction for possession of a controlled dangerous substance on two separate occasions, once in 1999 and once in 2003. In July 2004, E.C. enrolled in a methadone maintenance program.
J.M. was born in March 2005. He tested positive for amphetamines and methadone at birth. Neither E.C. nor R.M. could explain why E.C. tested positive for amphetamines. Because J.M. suffered from tremors due to withdrawal from methadone after his birth, he was not discharged from the hospital with his mother. DYFS was notified.
DYFS assigned a caseworker, who learned that E.C. had received prenatal care and participated in a methadone maintenance program at Kaleidoscope during her pregnancy. E.C. had not tested positive for substances other than methadone since she first attended the program in July 2004, and her counselor described her compliance with the program as "good."
The caseworker spoke to E.C.'s older children, D.R. and S.R., and found them to be happy and well nurtured. They were of age-appropriate weight and height and were both enrolled in school. They told the caseworker that E.C. always gave them breakfast and helped them get ready for school. When asked about punishment, they said they were sent to their rooms. D.R. also said, however, that his mother hit him with a belt once a long time ago. Both children denied ever seeing their mother giving herself a needle or taking any "powder."
The caseworker visited E.C.'s home, a three bedroom apartment. The apartment was "well kept"; sleeping arrangements were "appropriate"; there was "plenty" of food; and a crib, pampers and clothes had been readied for the arrival of a new baby.
In late March 2005, DYFS proposed a plan for the family, which E.C. and R.M. agreed to accept. The parents were to "live in a drug-free environment," accept homemaker assistance and undergo substance abuse evaluations. E.C. had a substance abuse evaluation, but R.M. did not. On April 1, 2005, E.C. presented a urine specimen for testing; the test showed alcohol at a rate of 91mg/dl.*fn2 On three subsequent occasions in April, E.C. was unable to provide a urine sample.
In April 2005, DYFS received a report that D.R. had a bruise on his cheek, which the child had told the "caller" was caused by E.C.'s hitting him with a belt. The caseworker saw a scratch on D.R.'s face, which he explained was caused by his plastic Spiderman glasses. The school nurse, who had seen D.R. a week before at the request of the "caller," told the caseworker that she had seen nothing but a "faint" red mark, which the child dismissed as "nothing." Upon examining D.R. and his sister S.R., the caseworker saw no other marks or bruises indicative of abuse. DYFS concluded that the allegation was unfounded.
By complaint filed on April 27, 2005, DYFS sought and was granted custody, care and supervision of E.C.'s three children. D.R. and S.R. were placed with a relative with whom they remained throughout this proceeding. J.M., who had been designated as "medically fragile," was placed with Hudson Cradle. In November 2005, when J.M. was no longer deemed "medically fragile," he was placed in the care of E.C.'s mother, H.R. In August 2006, after his maternal grandmother was diagnosed with and given surgical and chemical treatment for cancer, J.M. was removed from H.R.'s home and placed in a foster home where he has remained. According to the caseworker, the foster parent is "very much interested" in adopting J.M., and he is "very lovable towards" his foster parent and appears to be unhappy when separated from the home for visitations.
After E.C.'s children were removed from her custody, E.C. did not take prompt action to address her addiction. On May 23, 2005, she told the court that she had used cocaine on May 4 and 21, 2005. The court entered an order directing E.C. to enter a detoxification program. E.C. attended two detoxification programs between May 23 and July 26, 2005. She left both after a one-day stay.
R.M. visited J.M. with E.C. at Hudson Cradle during the months of June and July. R.M., however, was arrested on July 27, 2005, and at a review hearing held on that date, E.C. admitted recent heroin use. The court ordered R.M. to contact DYFS upon his release and directed DYFS to offer services to him at that time if his paternity was confirmed and if he offered himself as a caretaker for J.M. The court ordered E.C. to submit to a psychological evaluation and random drug screens.
Although E.C. continued to visit J.M. at Hudson Cradle until October 15, 2005, she had no contact with DYFS between September 9 and December 28, 2005. She failed to appear in court for a review hearing on November 2, 2005. On December 29, 2005, she went to the DYFS office and reported that she had been living in Pennsylvania. She declined to submit a urine sample for testing.
R.M. remained in jail. On October 7, 2005, his probation was terminated, and he was sentenced to a four-year term of imprisonment. In addition to the crimes for which he was sentenced, R.M. had additional prior convictions for possession of a controlled dangerous substance in 1986 and 1988 and a prior conviction for bribery in 1994.
On January 11, 2006, the court again ordered E.C. to submit to random urine screens. The order included a warning that any refusal to submit a specimen for testing ...