On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-106-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically September 9, 2008
Before Judges Carchman, Sabatino and Simonelli.
In these consolidated appeals, defendants J.S. and A.B. appeal from a judgment of the Family Part terminating their parental rights to their two children, A.L.S. and T.J.S., and granting guardianship to plaintiff Division of Youth and Family Services (DYFS or Division). We affirm.
These are the extensive facts adduced at trial. A.B. and J.S. are the unmarried parents of a daughter, A.L.S., born January 20, 1999, and a son, T.J.S., born July 16, 2001. The Division's first contact with defendants occurred on December 14, 1998, when DYFS received an anonymous call alleging that A.B. was more than seven months pregnant and abusing crack cocaine. While A.B. initially denied using drugs, she later admitted that she had tested positive for cocaine during a prenatal check-up. During a home visit on December 21, 1998, A.B. admitted to the Division caseworker that she had been using alcohol, marijuana and crack cocaine while pregnant, but claimed she did not realize that she was pregnant for the first five months. She told the caseworker that she had been "clean" for approximately three weeks.
On January 20, 1999, A.B. gave birth to A.L.S., who was born "clean." Following a short stay in the NICU, A.L.S. was discharged to A.B.'s care. Within two months, the Division received an yet another anonymous referral indicating that A.B. continued to abuse crack cocaine and that she had suffered a drug-related seizure requiring hospitalization. A caseworker visited A.B. the following day, March 19, 1999, accompanied by Linda Taylor of the Mercer Street Friends. Taylor later described A.B. as "nervous" and "not able to focus" during the visit. She noted that the room was "very dirty," that A.B. appeared "not to be groomed," and that A.L.S. had an eye infection. When questioned, A.B. admitted that she had suffered a seizure, but claimed it resulted from low blood sugar. A.B. denied using drugs since her pregnancy and provided a urine screen.
Following the home visit, the DYFS caseworker was stopped by local police who indicated that they had a warrant for A.B.'s arrest for drug-related offenses. Following A.B.'s arrest, A.L.S. was left in the care of J.S. and his mother, Lois.
Despite A.B.'s assurances that she had not used drugs since her pregnancy, on March 23, 1999, Taylor informed DYFS that A.B.'s urine screen was positive for marijuana and cocaine. Taylor recommended that A.B. enter Turning Point, a 28-30 day inpatient drug-treatment program. When confronted with the results of her urine screen, A.B. admitted to smoking marijuana at a friend's party, but denied using cocaine. J.S. indicated that he was in the TASC*fn2 substance abuse program and had not used drugs in eight weeks. Both A.B. and J.S. indicated that they would not allow A.L.S. to be removed from the home, and stated that they would contact a lawyer.
Contrary to J.S.'s representation, TASC informed the Division that J.S. had not been in the program since July 20, 1998, although he did call on March 12, 1999, asking to return. After being instructed to come to the TASC office on March 13, 1999, J.S. failed to appear.
On March 25, 1999, the Division received the medical records relating to A.B.'s February visit to the emergency room, which revealed that she had tested positive for both marijuana and cocaine. The records further revealed that A.B.'s blood sugar was within normal range.
On March 31, 1999, the Division filed a verified complaint and order to show cause seeking custody of A.L.S., which was granted on that same date.
The Division made several attempts to obtain physical custody of A.L.S. and ultimately, by order dated April 7, 1999, J.S. was granted custody of A.L.S. on the condition that A.B. was not to have unauthorized contact with the child. The order required J.S. to complete a psychiatric evaluation, and both J.S. and A.B. were required to complete substance abuse screenings. A.B. was further ordered to enter into an in-patient substance abuse treatment program.
A.B.'s drug use continued, and on April 8, 1999, she submitted a positive drug screen for cocaine resulting in her entering Turning Point for treatment, which she successfully completed on May 18, 1999. J.S. submitted to a drug screen, which was negative although he later explained that he had purchased a "shake" to mask his use of drugs and facilitate a negative test result.
J.S.'s course of conduct was problematic. From April 1999, until November 1999, when DYFS regained custody of A.L.S., J.S. continuously used drugs, refused drug screens or exhibited physical traits or conduct suggesting continued drug use. During this period and unbeknownst to DYFS, J.S.'s sister, who had been granted custody of A.L.S., absented herself to Texas leaving the child in the care of J.S.'s mother Lois, who was physically unable to care for the child. J.S.'s understanding of his drug issues was best demonstrated when he inquired why he and A.B. could not do drugs and at the same time, care for the child. Any attempts by J.S. to successfully enter or complete drug programs were unavailing. His future was best described when the TASC director noted on the discharge sheet that J.S. "has no intention of stopping his drugging or complying with any treatment program."
A.B.'s successes at Turning Point were short lived. She continued receiving out patient treatment at TASC through Family Guidance, but repeatedly failed to appear for appointments. A November 29, 1999 court order reiterated the requirement that J.S. attend an inpatient substance abuse treatment program, and A.B. was ordered to attend substance abuse evaluations at Mercer Street Friends; however, she refused to submit to a urine screen in court on January 10, 2000. One month later, she and J.S. tested positive for cocaine, a circumstance that was repeated for J.S. just two months later when he again tested positive for cocaine.
On January 24, 2000, the court issued an order finding that A.L.S. had been abused and neglected by her parents and granting DYFS custody of A.L.S. Both J.S. and A.B. were granted visitation. By court order dated February 14, 2000, A.B. and J.S. were required to undergo drug evaluations, and Lois was to be evaluated to determine her ability to care for A.L.S. Intervening orders in April, June and September 2000 reiterated the need for J.S. to cooperate with random drug screens and A.B. to cooperate with drug screens and various treatment recommendations.
The Division referred J.S. to the Family Guidance Center; however, he failed to follow-through with that program, and his case was closed in June 2000. J.S. later entered a treatment program at Maryville on August 7, 2000, and successfully completed that program on September 4, 2000. J.S., however, tested positive for cocaine just a few weeks later on September 30, 2000.
A.B. did make attempts to address her drug issues. In August 2000, she called DYFS seeking a referral for treatment. She had recently been arrested for outstanding warrants, suffered another seizure and was referred to Mercer Trenton Addiction Science Center (MTASC).
A MTASC clinician performed a treatment evaluation of A.B. on August 23, 2000. The clinician noted that A.B. reported first using marijuana at age eighteen, moving to cocaine by age nineteen, and smoking crack cocaine by age twenty-two. He also noted that she stated "that she has remained clean for over a month . . . but later disclosed that she used the day before the assessment was conducted." He recommended treatment of partial hospitalization, and referred A.B. to the MTASC program. A.B. did not enter the MTASC program, and admitted to using crack when confronted with taking a drug test on September 28, 2000.
Both parents re-enrolled in the municipal TASC program, but attended only one meeting each on October 21, 2000. They were both terminated from the program on November 29, 2000.
By order dated May 7, 2001, A.L.S. was removed from foster care and placed in the physical custody of Lois. J.S. and A.B. were ordered to move out of the home and not to have unsupervised contact with their daughter.
The pattern of apparent successes and then reversion to drug use continued over the next few years. Additionally, successes were tempered by disciplinary problems that caused A.B. to leave various programs that had been made available to her. During this period, specifically July 16, 2001, A.B. gave birth to T.J.S., who was born drug-free. This birth, however, marked the end of the romantic relationship between A.B. and J.S.
As noted, A.B. started a number of programs that resulted in failure because of disciplinary reasons. In 2002, the Family Afterward program discharged A.B. for that reason followed months later by Epiphany House discharging A.B. for the same reason.
Some success was achieved at the Manna House Transitional Housing Program where A.B. remained sober and graduated from the program with employment and the custody of her children. The success was short lived as A.B. lost her employment, suffered a miscarriage, and in March 2004, she submitted a positive drug screen. She thereafter refused to submit to additional screens acknowledging that they would be positive. She then refused to enter outpatient substance abuse counseling.
On the evening of May 11, 2004, the Division received a referral from E.H., A.B.'s boyfriend, that A.B. was actively using drugs and that she had left the children with him since the morning of Saturday, May 8, 2004, without informing him of her whereabouts. E.H. further stated that A.B. had stopped going to meetings and was leaving the children with strangers.
The caseworker responding to the referral reported that A.B.'s home was in "disarray. There were piles of clothes, dirty dishes and other such clutter." The caseworker noted that five-year-old A.L.S. "was sleeping on a toddler bed without bedding" while T.J.S., then three, slept on a "love seat couch . . . with no bedding or covering on him; he was dressed only in a diaper." The caseworker noted that both children were "very dirty and not well cared for. [A.L.S.]'s hair was extremely tangled and dirty."
The caseworker observed that A.B. was annoyed, frustrated and "appeared to be under the influence." A.B. initially denied using drugs or alcohol, other than her prescription Lexipro for depression, claiming that she had been clean for over two years. However, she later admitted that she had relapsed with crack cocaine two days before this incident.
The Division initiated an emergency removal of A.L.S. and T.J.S. from A.B.'s care and temporarily placed them with Lois and J.S. However, J.S. had failed to complete any treatment program since February 2002, and Lois could not care for the children on her own. The children were removed the following day and placed in foster care.
DYFS filed an amended verified complaint and order to show cause on May 12, 2004, seeking removal and custody of both children, which was granted.
The children had their first visit with A.B. on May 18, 2004. During the visit, the children were upset, and A.B. indicated that she would do what was necessary to have them returned to her care. The children continued to do well in foster care; however, the foster parents indicated that A.L.S. would need counseling to address behavioral issues
On June 3, 2004, both J.S. and A.B. tested positive for cocaine. By order of that same date, the court granted A.B. supervised visitation, and she was also ordered to attend an in-patient substance abuse treatment program; however, she later indicated that she did not want to enter residential treatment and give up her possessions. J.S.'s visitation was suspended pending his compliance with court-ordered, out-patient drug treatment.
The pattern of drug abuse continued. A.B. tested positive for cocaine again on June 8, 2004. She refused to submit to drug screens on both June 23, 2004 and July 1, 2004. J.S. contacted DYFS on July 12, 2004, stating that he wanted visitation with his children and that he would agree to undergo the necessary treatment. J.S. did not follow through, and he tested positive for cocaine in court on August 2, 2004.
A.B. did not appear in court on August 2, 2004, and her visitation was subsequently suspended due to her failure to attend court-ordered treatment and evaluations and to comply with drug screenings.
A.B. entered a drug treatment program at New Hope in August 2004. A.B. completed that program and was discharged on September 23, 2004, with a minimum recommendation of "intensive outpatient treatment." She was referred to the Riverview outpatient program, but just days later, on September 27, 2004, A.B. tested positive for cocaine. Although she attended intake at Riverview in October 2004, A.B. did not return for treatment.
As of September 2004, A.L.S. and T.J.S. remained in the same foster home together. Both children were working with an in-home therapist from the Children's Home Society; however, A.L.S. continued to suffer emotional and behavioral issues. Her foster family reported that she had a dislike of men, was a difficult eater, and engaged in power struggles with her foster mother. The psychologist continued that A.L.S. seemed comfortable with her foster family, referring to her foster parents as "mom" and "dad," but that she "hate[ed] being a foster child."
On October 28, 2004, A.B. was granted weekly visitation with the children, conditioned on her compliance with treatment But in November 2004, the foster parents reported that the children were becoming increasingly upset after visits with A.B. and had been acting out in the foster home. The foster mother reported that A.L.S. was scared to go on the visits, and that T.J.S. cried, threw temper tantrums and had spread feces across the bed.
In December 2004, the foster parents notified the Division that they wished to end the placement due to the children's disruptive behavior. The children were removed from the foster home on December 22, 2004, and placed in Angel's Wings temporarily. A.L.S. was very upset, asking to return to her foster home, questioning whether she had done something wrong. The children were placed in a new foster home the following day. The children exhibited behavioral problems soon after being placed in their new foster home including altercations with other children necessitating medical care and treatment.
In December 2004, A.B. was incarcerated for twenty-eight days relating to charges of theft, possession of controlled dangerous substances and driving fines resulting in a suspension of her visitation. On January 25, 2005, A.B. enrolled in CPC Behavioral Healthcare Intensive outpatient program and made "great improvements" while in treatment.
A.L.S. was admitted to Monmouth Medical center on April 11, 2005, following suicidal ideations. In particular, A.L.S. had been riding her bicycle in the middle of the street, refusing to move for traffic. Later she became aggressive while in possession of a knife. She appeared to be "greatly depressed" and having "difficulty comprehending the sequence of events taking place in her life." She was diagnosed with post-traumatic stress disorder, depressive disorder and oppositional defiant disorder, and treated with anti-depressant and mood stabilizing medication.
The court conducted a permanency hearing on May 12, 2005, and accepted the Division's plan proposing the termination of A.B.'s and J.S.'s parental rights, followed by adoption of A.L.S. and T.J.S. By that same order, A.B. was granted supervised visitation.
A.L.S. underwent another psychiatric assessment after acting out in her foster home. She was admitted to Monmouth Medical Center due to depressive and oppositional defiant disorders on June 11, 2005. A.L.S. was transferred to the University of Medicine and Dentistry of New Jersey (UMDNJ) Children's Transitional Residence (CTR) on July 12, 2005, for more intensive therapy to stabilize "behavioral and emotional difficulties including agress[ive], assaultive, oppositional behaviors, sexualized behaviors, and suicidal ideations and gestures."
The CTR core assessments of A.L.S. listed the removal from her biological parents, reported exposure to domestic violence and possible sexual abuse, reported exposure to her parents' substance abuse, multiple foster home placements, multiple hospitalizations, recent contact with A.B. via supervised visits, and recent reported sexualized behaviors and dialogue as sources of the "conflicted feelings" which A.L.S. "demonstrates in her behaviors." The CTR termination report for A.L.S. indicated that in therapy, A.L.S. addressed her feelings of loss, abandonment, rejection, anger and sadness relating to her parents' inability to care for her and T.J.S. as a result of their drug use, her removal from her previous foster home after being told by her foster parents that they wanted to adopt her, placement in her current foster home, lack of closure with her biological parents and conflicted feelings related to adoption.
DYFS filed a guardianship complaint seeking the termination of parental rights on June 17, 2005.
A.B.'s pattern of conduct remained constant. In June 2005, A.B. contacted Sue Ralph stating an interest to return to the Manna House graduate program. A.B. began attending meetings at the YMCA and resumed oral drug screens. ...