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Division of Youth and Family Services v. S.T.

December 23, 2008

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
S.T. AND G.M., DEFENDANTS-APPELLANTS,
IN THE MATTER OF THE GUARDIANSHIP OF S.M., A MINOR.



On appeal from the Superior Court of New Jersey, Chancery Divison, Family Part, Sussex County, Docket No. FG-19-20-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 6, 2008

Before Judges Parrillo, Lihotz and Messano.

Defendants S.T. and G.M., respectively the mother and father of S.M., appeal from the February 25, 2008 order of the Family Part that terminated their parental rights and awarded the Division of Youth and Family Services (D.Y.F.S.) guardianship of S.M. in anticipation of his adoption. Both defendants contend that D.Y.F.S. failed to marshal clear and convincing evidence as to each of the four prongs of the statutory standard set forth in N.J.S.A. 30:4C-15.1(a). D.Y.F.S. and S.M.'s law guardian counter by arguing that the trial judge correctly found the evidence was sufficient and properly terminated defendants' parental rights.

We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

I.

S.T. was seventeen years old when S.M. was born on December 20, 2000. Throughout much of the relevant time immediately preceding D.Y.F.S.' initial involvement with the family, S.T. resided in a home in Newton owned by L.W., G.M.'s mother, along with G.M., and K.W., L.W.'s husband. Throughout 2003 and 2004, the local police were frequently called to respond to complaints of physical altercations between members of the household or allegations of alcohol or drug abuse. L.W. on one occasion was charged with stabbing K.W. in the back with a screwdriver. G.M. left the home, L.W. and K.W. became estranged, and thereafter S.T. and K.W. became paramours, residing together in a different apartment with S.M. However, complaints of domestic violence now between K.W. and S.T., and substance abuse by both, continued, and further police intervention was a regular occurrence. On November 3, 2005, D.Y.F.S. received an anonymous call that one day earlier, S.T. was seen dragging S.M. down the walkway of their home while the child screamed and cried. After also reporting regular incidents of domestic violence and substance abuse in the home, the caller indicated that an ambulance had arrived earlier in the day and removed S.T. for reasons unknown. D.Y.F.S. investigated, determined charges of abuse or neglect were unfounded, but opened a case for the purpose of monitoring the family and providing services.

During this time, D.Y.F.S. obtained S.T.'s medical records which revealed a number of recent hospital admissions during which S.T. had complained of "blacking out," had reported to the hospital with alcohol on her breath, and had left the hospital against medical advice. Home visits that D.Y.F.S. made during these months were greeted with hostility by S.T. and K.W. S.T. underwent a substance abuse evaluation on November 30, 2005 and was found to be "alchohol abusive," after which D.Y.F.S.' attempts to obtain urine samples or engage S.T. in counseling were often frustrated. K.W. continued to refuse evaluation. While most of the service providers found S.M. to be in good physical health and indicated that S.T. was meeting the child's basic needs, D.Y.F.S. obtained an evaluation of S.M. that indicated he might suffer from possible developmental delays and needed further evaluation. Although D.Y.F.S. believed S.M. should remain in S.T.'s care at the time, on March 1, 2006, it filed a complaint and order to show cause seeking supervision and investigation. The court's order granting the order to show cause set March 24, 2006 as the return date.

Linda Pumphrey, the D.Y.F.S. caseworker, testified at trial as to the circumstances regarding S.M.'s removal from the home before that return date. On March 22, 2006, D.Y.F.S. was notified that S.T. and K.W. attended a substance abuse evaluation with S.M., and that both adults were intoxicated. D.Y.F.S.' caseworkers responded, interviewed S.T. and K.W., and concluded an emergency removal of S.M. was necessary. D.Y.F.S. filed an amended complaint the next day seeking custody of S.M. and on March 24, the judge entered an order granting the relief. S.M. was placed in foster care where he has remained since.

D.Y.F.S. referred S.T. for parenting classes, intensive inpatient substance abuse treatment at Sunrise House, outpatient treatment thereafter, and anger management counseling. S.T. completed parenting classes and a twenty-eight day intensive substance abuse program in May 2006. Pumphrey testified that S.T. had inconsistently engaged in an intensive follow-up outpatient program since May 2006, attending only ten sessions throughout the year. However, a supplemental letter sent in August 2007, shortly before the October trial commenced, indicated that S.T. had improved her outpatient program attendance. In the interim, in November 2006 and again in January 2007, S.T. suffered relapses by using cocaine and alcohol.

The November incident came to light when S.T., visibly intoxicated and crying, reported to the police that she had been raped. In fact, after investigation, the police determined that S.T. had fabricated the story. On December 20, 2006, she was charged with filing a false report after admitting the same to police. Following her January 2007 use of cocaine, S.T. was admitted to a short-term inpatient program at St. Clare's Hospital. S.T. also refused to submit to at least one urine screen thereafter.

In February 2007, G.M. was located at the Keogh-Dwyer Correctional Facility in Newton. He had been living in Virginia, was arrested in that state for a driving offense, and transported back to New Jersey to face open charges of aggravated assault. G.M. told the D.Y.F.S. caseworker who interviewed him at the jail that he was arrested because of a "fist fight" and that he had not seen his son for a year. In fact, G.M. had not seen his son since 2004.

Pumphrey further testified that since September 2006, S.T. consistently participated in psychological evaluations and counseling sessions with an assigned therapist, Melissa Ciottone. Ciottone also supervised visitation between S.T. and S.M. and regularly furnished reports to D.Y.F.S. At trial, Pumphrey indicated that based in large part upon these reports, D.Y.F.S. concluded that S.T. had not made any significant progress in therapy and decided to seek guardianship of S.M. In March 2007, the Division filed another complaint naming S.T. and G.M. as defendants and seeking to terminate their parental rights.

Pumphrey also revealed that S.M. had made allegations to his foster mother and his therapist, Dr. Katherine Hickey, that S.T. and K.W. touched him in his private area. Hickey and the foster mother noted changes in S.M.'s behavior including a rise in violence and frequent bed-wetting. Pumphrey testified that D.Y.F.S. regarded the charges of sexual abuse by either S.T. or K.W. as unfounded.

Pumphrey noted that Hickey's reports described S.M. as guarded in his therapy, angry at S.T., and increasingly attached to his foster mother. In the five or six times that she herself had observed visitation sessions, Pumphrey believed the interaction between S.T. and S.M., while sometimes appropriate, at other times, revealed problems. S.M. became frustrated; he would usually walk past his mother, without any gesture of affection, to see what toys she had brought for him; and S.T. had ongoing difficulty setting boundaries and saying no to the child. S.M. no longer indicated that he wished to return home to live with S.T.

Pumphrey testified that S.M. had grown less withdrawn since being removed from S.T.'s care, was now able to "feed himself," and responded to other people to a greater degree. Pumphrey opined that S.M. was attached to his foster mother and that all of his needs were being met by his foster family at the time of trial.

As to G.M., Pumphrey testified that he had not seen S.M. since 2004, when S.M. was three or four years old. After performing a psychological evaluation and criminal background check on G.M., D.Y.F.S. concluded that he was not an appropriate caretaker for S.M. As of ...


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