On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-60-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2008
Before Judges Fisher, C.L. Miniman and Baxter.
Defendant D.P. appeals from a September 10, 2007 order that terminated her parental rights to her daughter C.P., born August 29, 1999.*fn1 That order awarded guardianship of the child to the Division of Youth and Family Services (DYFS) and authorized the agency to proceed with adoption proceedings.*fn2 We affirm.
Although D.P. challenges the sufficiency of the evidence DYFS presented at trial, she also strenuously argues that her parental rights were terminated due to a "single lapse of judgment" on October 24, 2005, that does not warrant the termination of her parental rights. We frame the relevant facts with that contention in mind.
The record reveals that the October 25, 2005 removal of D.P.'s daughter, C.P., was the third occasion on which DYFS was forced to intervene and seek emergency custody of C.P. We begin our review of the record with the first removal of C.P. on the day she was born, August 29, 1999. Three weeks earlier, D.P. had been admitted to a local hospital, where she was diagnosed with psychiatric problems including adjustment disorder, anxiety and depressed mood as well as cocaine abuse. The hospital notified DYFS of D.P.'s status and when C.P. was born, DYFS immediately removed her from her mother's care. DYFS placed C.P. in foster care with B.B., her foster mother, with whom she currently resides. On September 9, 1999, DYFS filed a protective services complaint seeking legal and physical custody of C.P. A judge granted DYFS such relief.
With the child removed from her care, D.P. was ordered to attend a psychological evaluation, to continue in outpatient rehabilitation, and to have supervised visits with her daughter on a biweekly basis. After D.P. failed to attend two of three subsequent hearings between December of 1999 and May of 2000, DYFS filed a guardianship complaint on July 5, 2000.
Once the guardianship complaint was filed, D.P. changed course. She completed parenting skills classes, an anger management program, and attended NA meetings. She participated in monthly supervised visits with C.P. and obtained employment.
Recognizing that D.P.'s compliance with treatment and her employment status demonstrated considerable progress toward achieving stability, DYFS permitted D.P. longer and more frequent visits with her daughter, including overnight stays. DYFS subsidized the resulting transportation costs.
On August 1, 2001, DYFS dismissed its guardianship complaint and reinstated the protective services complaint. Custody of C.P. was returned to D.P. under the supervision of DYFS, nearly twenty-three months after the child's birth and removal from her mother's care.
Before reunification was completed, DYFS arranged for a psychological evaluation of D.P. by Santa Gregory, a psychologist. Gregory found that although D.P. had remained in compliance with the drug screens and the twelve-step substance abuse recovery program, she had ceased psychotherapy, viewing it as unnecessary, and had since developed frustration with DYFS's involvement in her relationship with her daughter.
As the summer of 2002 approached, D.P. struggled with unemployment and began collecting benefits and cash donations from her church; however, because the transition toward reunification was occurring relatively smoothly and D.P. had remained compliant with court orders, DYFS closed its file completely on September 1, 2002.
D.P.'s newfound stability did not last long. Six months later, on February 14, 2003, DYFS initiated its second emergency removal of C.P. On that date, C.P.'s godmother, H.M., notified DYFS that D.P. had left C.P. with H.M. for four days without returning or calling on the scheduled pick-up date, which was the second day of the four days in question. H.M., not knowing D.P.'s whereabouts and no longer able to care for the child, contacted DYFS. D.P. has never provided an explanation for her failure to pick up C.P. on the scheduled date.
Five days later, DYFS filed a complaint, again seeking custody of C.P. After spending a few weeks in a temporary foster home, C.P. was again placed with her original foster mother, B.B.
DYFS continued to provide services to D.P. after that second removal, including two substance abuse appointments for D.P. in May 2003. D.P. failed to attend either one, which was significant in light of having recently failed two urine screens that tested for the presence of cocaine.
Because the February 14, 2003 removal was the second time DYFS had been forced to remove C.P., DYFS was able to secure a June 11, 2003 order for an Exception to the Requirement of Reasonable Efforts to Reunify, pursuant to N.J.S.A. 30:4C-61.2, and thus was no longer obliged to provide reunification services. Notwithstanding that order, DYFS continued to provide D.P. with services, including the Options Program for substance abuse treatment, the Evergreen Program at Bergen Regional Medical Center, psychological assessments by The Audrey Hepburn Children's House and parenting skills classes. DYFS also assisted D.P. in her effort to find employment and gave her $1300 to buy new furniture.
On August 27, 2003, DYFS again filed a guardianship complaint based on D.P.'s continued substance abuse, unstable housing, lack of employment and inconsistent visitation with her daughter. Frank Dyer, who served as the principal psychology expert for DYFS at trial, was asked by DYFS to evaluate the possibility of reunification. Dyer recommended in his March 19, 2004 report that DYFS not immediately proceed with the termination of D.P.'s rights, but should instead afford her one more opportunity to demonstrate adequate parenting skills. He opined:
It appears that this is not a situation in which we have a birthparent who has so egregiously failed the child, or abandoned the child, or abused and neglect[ed] the child that there are ample grounds for terminating parental rights. This situation involves an emotionally immature, scattered, impulsive individual with some identity problems and a tendency toward depression who inappropriately left the child with a babysitter, causing the failure of a reunification after a lengthy stay in foster care. Therefore, even though it is my opinion that CP would be happier and better adjusted if she were simply allowed to remain permanently with her foster mother, the consequences of removing her from this placement are not so severe as to justify seeking a legal severance of the birthmother's parental rights in order to permit adoption by the foster mother.
However, Dyer also opined that D.P.'s psychological problems, coupled with "her history of one unsuccessful reunification with the child, warrant caution in returning the child a second time." Dyer viewed D.P. as an "attachment" figure to C.P. In contrast, he found B.B. to be C.P.'s "central attachment figure."
Consequently, DYFS, accepting Dyer's recommendation, asked the court in April 2004 to dismiss the guardianship complaint and reactivate the protective services litigation for a second time. In July 2004, D.P. was returned to her mother's custody, the case was dismissed from litigation, and on May 25, 2005, DYFS closed its file.
Prior to DYFS closing its file in May 2005, D.P. attended eleven out of fourteen counseling sessions with therapist Sean Conlon who described his sessions with D.P. as "alternat[ing] between resistive, argumentative and avoidant" and "more cooperative and receptive." Similar to Dyer's March 2004 opinion, Conlon described the foster mother as the child's primary attachment figure. He opined that "continuation of monitoring therapeutically and through the Division [in] the reunification process is essential."
Between May and October of 2005, D.P.'s progress remained satisfactory. Although she continued to struggle with employment, she was able to maintain a relatively stable environment for her daughter. In addition, as she had earlier promised, D.P. promoted contact between her daughter and the foster mother in the form of overnight visits on alternate weekends.
Unfortunately, D.P.'s progress, and the stability she had achieved after the second reunification, came to an abrupt halt on October 24, 2005, when D.P. left for the Bronx without making suitable childcare arrangements for C.P. Specifically, according to D.P., her stepdaughter called her on October 24, 2005, reporting that she and her children were very ill and requesting that D.P. come to the Bronx to take care of them. While C.P. and D.P.'s eight-year-old niece, whom D.P. was watching, were still in school, D.P. left for the Bronx. D.P. testified that she called and left a message on her neighbor Rena's answering machine, explaining that she had an emergency and asking Rena to take care of the children when they arrived home from school.
A DYFS caseworker testified that Rena denied ever receiving such a message. Rather, Rena maintained that she found C.P. and her cousin waiting outside in the rain after school on October 24, 2005, and that neither she nor the two children knew D.P.'s whereabouts. D.P. did not have a cell phone.
The trial testimony established that D.P. neither contacted the school to advise C.P. of the emergency, nor made any actual contact with her neighbor to ensure her daughter's safety until the following night. Prior to that telephone call, however, the neighbor had already notified the Saddle Brook Police that ...