On appeal from Superior Court of New Jersey, Chancery Division - Family Part, Essex County, Docket No. FG-07-232-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and Baxter.
J.M.M., the mother of sons, R.R.M.G., born October 19, 1999, and R.R.M.P., born October 19, 2002, seeks review of an October 3, 2007 order terminating her parental rights. R.P., the father of R.R.M.P, likewise challenges that same order terminating his parental rights.*fn1 Both contend that the Division of Youth and Family Services (DYFS) failed to carry its evidential burden to support this relief. We affirm.*fn2
Although these two appeals are consolidated, we will summarize the pertinent facts separately regarding each of these parents. We do so because they have resided together for only a portion of the relevant time period and their interaction with the children at issue here has followed separate paths.
DYFS involvement with J.M.M. and her two sons began on January 15, 2004, when Newark police executed a search warrant of J.M.M.'s residence and found seventy decks of heroin and heroin paraphernalia. At the time of the raid, J.M.M.'s whereabouts were unknown and her mother, T.M., was watching all six children. Newark police notified DYFS, which placed the two children who are the subject of this appeal with their maternal aunt, S.W. Shortly thereafter, police located J.M.M. and arrested her. Unable to post bail, J.M.M. remained confined for a total of 143 days. J.M.M. ultimately pled guilty to a charge of possession of a controlled dangerous substance on September 15, 2004, and was sentenced to a two-year term of non-custodial probation on January 14, 2005.
On April 5, 2004, DYFS removed the children from S.W.'s care because S.W. and five children were all sleeping in the same room, and a criminal history check revealed an arrest record. DYFS transferred J.M.M.'s two children to a foster mother, S.B., with whom the younger son has been living ever since.
In the spring of 2004, while J.M.M. was still incarcerated, S.B. contacted a service provider who was working with the two children to express concern about the older son's behavior. She reported that, although only four years old, he "flashes gang signs, talks about his family killing people, is very aggressive, likes to fight, attempts to run away from home, and curses."
After her release from jail, J.M.M. tested positive for marijuana on November 20 and December 7, 2004. On February 7, 2005, Catholic Charities terminated her from its substance abuse program because of her lack of motivation to remain drug-free and her refusal to participate in treatment. A month later, on March 8, 2005, J.M.M. failed a urine screening that tested for amphetamines. Nonetheless, she chose not to avail herself of the substance abuse treatment and parenting skills classes that DYFS offered her. In particular, although J.M.M. agreed on April 20, 2005, to accept drug treatment services, become more involved with her children, and make herself available for individual and family counseling, she failed to do so. The provider consequently notified DYFS in June 2005 that J.M.M. had failed to maintain contact with the service provider's caseworker and had failed to accept drug treatment or pursue family counseling.
J.M.M.'s contact with her children was equally disappointing. Although J.M.M. attended the first few scheduled sessions of supervised visitation beginning in December 2004, by the summer of 2005 she had started to arrive late for some visits and missed others entirely. That same pattern continued in 2006, causing the agency that provided the supervision, Tri Cities Peoples Corporation (Tri Cities), to cancel several later sessions when J.M.M. failed to inform Tri Cities whether she would be attending or not. J.M.M. has never offered any explanation for her repeated absences from scheduled visits with her two children.
Despite J.M.M.'s lack of cooperation with DYFS's effort to provide her with substance abuse treatment, DYFS persisted in its efforts to assist her in overcoming her addiction. In the spring of 2006, DYFS referred J.M.M. to yet another program, the Bridge Program, for substance abuse treatment. After J.M.M. failed to attend several sessions and tested positive for marijuana and cocaine, the program terminated J.M.M. on May 1, 2006.
Additionally, in spite of J.M.M.'s earlier failure in the spring of 2005 to attend parenting skills classes and individual therapy, DYFS continued to assist J.M.M. to overcome her shortcomings as a parent by offering her parenting classes at Essex County College. In April 2006, DYFS learned that J.M.M. had continually failed to participate in visitation with her children.
The record demonstrates that J.M.M.'s failings as a parent took a toll on her older son. In particular, in April 2006, the child was admitted to a local hospital for treatment after he claimed he heard voices telling him to hurt his younger brother. Upon discharge, he was sent to a therapeutic foster home to live with a foster parent who has undergone specialized training in addressing the needs of children who have severe behavioral problems. In June 2006, shortly after the older son began living with that foster mother, a psychologist who evaluated him found that he was "functioning below the normal limits [of] cognitive ability, with significant problems of disruptive behavior and oppositional behavior."
In a March 6, 2005 psychological evaluation conducted by Dr. Mark Singer at DYFS's request, Singer observed that he could not recommend reunification of J.M.M. with her children "at this time," because J.M.M. "lacks the emotional and physical resources needed to provide her children with a safe, consistent environment." Those findings paralled an August 3, 2005 psychological assessment of the older son by Linda Torosian, M.A., who concluded that "despite the efforts of his foster mother and his therapist, [the older son] does not appear to have made much progress regarding his behavior problems. . . . [H]is biological mother continues to have a negative impact on [him] and his struggles to improve."
On January 1, 2007, J.M.M. was again incarcerated for possession of CDS and remained locked up through July of that year.
In anticipation of trial, Dr. Frank Dyer conducted a psychological assessment of J.M.M. After interviewing her and reviewing voluminous records, Dyer concluded that there "was really nothing in [J.M.M.'s] interview or test results that would inspire any degree of confidence that she would be able to provide a safe, stable, nurturing, and stimulating home environment for any of her children." He recommended that DYFS "not consider [J.M.M.] as a viable candidate for custody of any of the children who are in placement." At trial, he reiterated those conclusions, adding that the older ...