On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-62-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Parker, R. B. Coleman and Lyons.
This case concerns the termination of L.H.'s parental rights to her two children, Z.B. and P.B. L.H. argues that the trial court should have considered a kinship legal guardianship in lieu of termination. The trial court found that it was in the best interests of the children to terminate L.H.'s parental rights. Because we find that the trial court's factual findings were adequately supported by the record, and its application of the law was correct, we affirm.
The following facts and procedural history are relevant to our consideration of the issues advanced on appeal. The New Jersey Division of Youth and Family Services (DYFS) first became involved with L.H. on July 7, 2005. At approximately 2:00 p.m., L.H. was stopped while driving her GMC sports utility vehicle by a Point Pleasant police officer for tailgating the car in front of her. When speaking with L.H., the arresting officer smelled alcohol and noted open containers of what he believed to be alcohol in the center console drink holder. He also observed two young children in the car.
L.H. denied that she had been drinking. She then had her children assure the officer that she did not have anything to drink. The officer called L.H.'s information into headquarters and was notified that L.H.'s driver's license was suspended and that L.H. had an outstanding warrant in Wall Township. After being uncooperative for a period of time, L.H. was finally handcuffed and brought to the station.
At the station, L.H. was given -- and failed -- a series of psychophysical tests. She was then administered a breathalyzer test, which indicated a .25% blood alcohol concentration. L.H. subsequently refused to give a proper second sample.
Approximately two hours after the arrest, Amanda Torres (Torres), a DYFS case representative, interviewed L.H. and her children. Z.B. and P.B., then ten and eight years old respectively, said that they had been at the beach and boardwalk by themselves. L.H. had dropped the children off earlier and then picked them up at a certain time and place. The children denied that their mother acted any differently on that day than she ever did. The children acknowledged that their mother drank beer.
Next, Torres spoke with L.H. According to Torres, L.H. appeared intoxicated. Her eyes were bloodshot and the odor of alcohol permeated the cell. L.H. denied drinking anything that day and further stated that she did not even know why she was there. Torres reported that L.H. was incoherent and did not understand the severity of the situation. Therefore, she decided that it was more appropriate to serve L.H. with a DODD letter, an emergency removal without a court order, pursuant to N.J.S.A. 9:6-8.28, as opposed to having L.H. sign a fifteen-day informed-consent agreement. The children, after a physical examination, were placed with L.H.'s brother, J.H. L.H.'s third minor child, J.B., had not been in the car at the time of her mother's arrest. DYFS obtained legal custody of J.B., and eventually placed her with family friends pursuant to a kinship legal guardianship.
L.H. was charged with driving while her license was suspended, N.J.S.A. 39:3-40; reckless driving, N.J.S.A. 39:4-96; following too closely, N.J.S.A. 39:4-89; failure to exhibit a driver's license, N.J.S.A. 39:3-29; consumption of an alcoholic beverage in a motor vehicle, N.J.S.A. 39:4-51A; driving an uninsured vehicle, N.J.S.A. 39:6B-2; refusal to submit to a breath test, N.J.S.A. 39:4-50.2; driving while intoxicated, N.J.S.A. 39:4-50; and operating a motor vehicle under the influence of alcohol with children in the car, N.J.S.A. 39:4-50.15B. L.H. was later charged in an indictment with two counts of fourth-degree child abuse, N.J.S.A. 9:6-3, as a result of driving while intoxicated with the children in the car. She was convicted of this offense and was sentenced to seventeen days in county jail, as well as two years probation.
L.H., forty-six years old at the time of her arrest, had a long history of alcohol abuse. L.H. also had a history of relationships with men who committed domestic violence against her. The record disclosed that L.H. had been drinking daily since 2001 and had a history of excessive drinking, mostly in binges.
After her arrest, L.H. was provided with referrals for substance abuse evaluations, treatment, urine screens, counseling, psychological evaluations, and psychiatric evaluations. She was also offered visits with her children during the approximately two-year period that the children were in placement. Following her arrest in July 2005, she attended an inpatient program at New Hope Foundation, Inc., from which she was discharged on August 22, 2005. Upon her discharge from the program, it was recommended that she attend Preferred Behavioral Health (Preferred) for intensive outpatient treatment beginning on October 5, 2005. Despite DYFS recommendations, L.H. did not appear for her appointment at Preferred and did not reschedule. She claimed that she was attending Alcoholics Anonymous meetings and had a "sponsor," however, she never provided DYFS with any proof. To the contrary, on three separate occasions, she visited the children after she had been drinking.
L.H. failed to attend her substance abuse evaluations on five occasions. On June 14, 2006, she tested positive for alcohol. She was eventually terminated from the after-care program because she got "loud in the office and started cursing at them and wasn't cooperative."
In addition to the treatment for alcohol addiction, L.H. received mental health treatment. She was evaluated by a DYFS psychological consultant, Dr. Chester Sigafoos (Sigafoos), in February 2006. Sigafoos diagnosed L.H. with "post traumatic stress disorder, alcohol dependence which is described as a more severe addiction than alcohol abuse, schizoid, avoidant and dependent personality traits." In his report dated February 2, 2006, Dr. Sigafoos stated that [t]he client has numerous psychopathological disorders and conditions that interfere with her ability to effectively parent her children, and pose a risk of harm to the children if untreated. She has been the victim of abuse but never received any treatment for it. She has an alcohol problem which has probably been present for some time, and one that served the function of self-medication of painful traumatic memories.
The client is in need of skills training, psychological intervention, psychopharmaceutical treatment and monitoring, monitoring and treatment of substance abuse, and guidance and supervision in the acquiring of independent living. Skills training in various areas, such as assertiveness training, stress management, relaxation methods, and interpersonal skills building, would assist the client.
The prognosis for her at that time was "fair to guarded."
Visitation with the children took place at the Community YMCA. L.H.'s drinking continued during visits and the visits were eventually suspended by the court. On November 1, 2006, L.H. showed up at her children's school, smelling of alcohol. Furthermore, police were contacted when L.H. inappropriately showed up under the influence of alcohol at the home of P.B. and Z.B.'s caregiver.
Various relatives were evaluated for placement of the children and were ruled out. The maternal uncles ruled themselves out. A family friend was ruled out by New York Interstate Services. A maternal aunt and uncle indicated to DYFS that they were considering the possibility of becoming the kinship legal guardian of Z.B. after he completed certain treatment and that they would, following placement with them, place him in a boarding school. They indicated that they would get back to DYFS.
Initially, the two children and their older sister, J.B., stayed with their maternal uncle at their grandfather's home in Brielle. All three children were subsequently placed in separate homes of family friends. By April 2006, the children were placed in another home as each of their respective caregivers refused to engage in resource parent training. Towards the end of 2006, Z.B. exhibited mental health and hygiene problems. He needed to be placed in a therapeutic home so that caregivers, who have had enhanced training to assist children who have special mental health needs, could help him.
On September 8, 2006, DYFS filed a Monmouth County Civil Complaint against L.H., seeking to terminate her parental rights to Z.B. and P.B. The complaint also sought to terminate the parental rights of the children's biological father, C.B., who has never, despite a formal investigation, been found. C.B. was defaulted and his parental rights were terminated.
The trial took place on May 14, 16, 17, and 23, 2007. The court heard testimony from a DYFS representative, Amanda Greeley (Greeley); Drs. Alexander Iofin (Iofin) and Sigafoos; and L.H. In addition, it appears that the court interviewed Z.B.
Iofin indicated that L.H. suffered from alcohol dependence, as compared to alcohol abuse. Essentially, L.H.'s life began to revolve around her use of alcohol according to Iofin. Iofin found L.H. was in denial and minimized her problem. She was self-medicating as a result of a depressive disorder. Iofin opined that L.H. needed to voluntarily enter rehabilitation in order for the treatment to be effective.
Sigafoos found an increase in the level of L.H.'s psychopathology that indicated the need for inpatient treatment. Sigafoos found that L.H. could not safely be reunited with her children since L.H. had difficulty taking care of herself. L.H. turned to alcohol to escape and had several relationships that were abusive and unhealthy. The doctor found that the children would be at risk of harm with L.H. due to her denial, her poor judgment, her continuing alcoholism and dependence. Furthermore, Sigafoos found that L.H. was not the children's psychological parent and termination of parental rights would not result in any harm to the children. In addition, he ...