On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-81-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2009
Before Judges Wefing, Parker and LeWinn.
Defendant L.R.R. is the natural mother of K.L.R., born August 31, 2005.*fn1 The child has been in the custody of the Division of Youth and Family Services (DYFS) since her birth and, except for sporadic and limited supervised visits with defendant, has never been in L.R.R.'s presence, let alone custody. Defendant appeals from an order of the Family Part entered on December 6, 2007, denying her motion to vacate a default judgment of guardianship, and from a judgment entered on the same day, following a proof hearing, terminating defendant's parental rights and awarding guardianship of K.L.R. to DYFS. For the reasons that follow, we affirm.
Prior to giving birth to K.L.R., defendant had four other children, none of whom were in her custody at the time of these proceedings. K.R., born October 18, 1988, and D.R., born February 4, 1992, were placed in the custody of K.R.'s paternal aunt in 1998, due to defendant's history of chronic substance abuse. H.R., born December 7, 1998, tested positive for cocaine and opiates at birth; E.R., born July 11, 2000, tested positive for methadone at birth. In August 2000, these two children were placed in the custody of defendant's sister.
Defendant tested positive for methadone on the day of K.L.R.'s birth, and the infant tested positive for opiates and methadone. Neglect was substantiated and K.L.R. was placed in DYFS's custody on September 13, 2005. DYFS initiated FN (abuse and neglect) proceedings, and scheduled substance abuse evaluations and treatment, counseling sessions and parenting classes for defendant. K.L.R. was diagnosed with cardiac problems that were likely attributable to defendant's substance abuse during pregnancy.
On October 20, 2005, K.L.R. was discharged from the hospital to Saint Clare's Home for Children in Elizabeth due to her medical needs. On December 12, 2005, K.L.R. was placed with a special care foster parent who was provided with instructions for meeting the infant's medical needs. During the two months K.L.R. was at Saint Clare's, defendant visited her only once.
Defendant attended a psychological evaluation with Dr. Mark Singer on December 1, 2005. Defendant told Dr. Singer that she had an extensive history of drug abuse starting when she was fifteen years old, and that she had been on methadone during her pregnancy with K.L.R. Dr. Singer opined that defendant was in the "early stages of recovery" from substance abuse, but that she was still "at a significant risk of relapse . . . ." The doctor recommended that defendant complete the drug treatment program in which she was then enrolled at Straight and Narrow, and maintain sobriety for a minimum of nine to twelve months "as a prerequisite to unification." Dr. Singer also recommended that defendant obtain adequate housing and employment upon discharge from Straight and Narrow, complete a parenting skills training program and participate in individual therapy.
L.R.R. failed to appear at the September 6, 2006 compliance review and permanency hearing. DYFS reported that defendant had not been compliant with the services it offered her. The trial judge found that DYFS had made reasonable efforts to provide services to defendant, and thereupon ordered DYFS to file for guardianship, which it did on October 11, 2006. The abuse and neglect litigation was dismissed on December 13, 2006.
L.R.R. appeared at a case management conference on January 11, 2007, at which time she was ordered to attend psychological and bonding evaluations. She failed to appear at the next scheduled case management conference on April 2, 2007. At that hearing, DYFS advised the court that defendant had been non-compliant with services and had missed scheduled visitation with K.L.R. DYFS also informed the court that two relative resources defendant had identified as possible custodians for K.L.R. had been ruled out, and that it was "urgent" to schedule a proof hearing. DYFS proposed a plan to place K.L.R. for adoption.
Defense counsel was present on behalf of L.R.R. Counsel advised the court that defendant knew she was supposed to come to court that day, that defendant was "realistic about her own situation," and it appeared that she had "just given up." The judge scheduled a proof hearing for April 13, 2007, but that date had to be adjourned because DYFS could not locate L.R.R.
A proof hearing was held on May 14, 2007. DYFS informed the court that it had located an adoptive home for K.L.R., pursuant to its plan set forth at the April 2 hearing. Defendant appeared, submitted to a urine screen and tested positive for cocaine. She told the court that she was scheduled to start an outpatient drug treatment program at East Orange General Hospital. She also identified two additional resource relatives, and the judge instructed her to bring those individuals to the next hearing scheduled for June 18, 2007.
DYFS arranged for defendant to have a psychological evaluation with Dr. Peter N. DeNigris on May 24, 2007. Dr. DeNigris informed DYFS that defendant appeared on that date but left his office building shortly after her arrival. She returned and began the psychological tests, but after one hour had completed only twenty-seven questions. After another half hour, Dr. DeNigris observed defendant sleeping. L.R.R. informed him that she had taken a prescription sleeping pill the previous night and had attended a methadone clinic that morning.
Dr. DeNigris reported that defendant had difficulty remaining awake during his interview with her. Therefore, he canceled the evaluation due to her inability to complete it. The evaluation was rescheduled twice; defendant failed to appear on both occasions.
At the June 18, 2007 hearing, defendant presented Yvonne Merrill as a potential caretaker for K.L.R. When questioned by the judge, Merrill stated that she had previously been involved with DYFS regarding her adolescent son who was no longer in her custody.*fn2
At that hearing, DYFS informed the court of defendant's failure to complete her psychological evaluation with Dr. DeNigris. DYFS further advised that a new appointment for that evaluation had been rescheduled for August 9, 2007, and the bonding evaluation had been scheduled for July 25, 2007.
DYFS requested a drug screen of defendant at the June 18 hearing; she tested positive for marijuana, cocaine and heroine.
On July 25, 2007, Dr. DeNigris completed a bonding evaluation of defendant and K.L.R. Based upon his observations, the doctor concluded that no bond had formed between them. Dr. DeNigris identified eight factors which he considered indicative of the presences of a bond between a parent and child:
(1) reciprocal and mutual interactions as well as exchanges of affection; (2) the caretaker's ability to be attuned and sensitively responsive to the child's needs; (3) the caretaker's skillfulness with appropriately monitoring and supervising the child; (4) the child's level of comfort when in the presence of the caretaker; (5) the child's involvement in exploratory behaviors; (6) the caretaker's abilities to comfort the child during stressful times and to resolve difficulties; (7) the caretaker's knowledge of the specific child's needs as well as awareness of general child development; and (8) the caretaker's ability to implement appropriate discipline that is consistent with the child's age and applicable to the misbehavior.
In applying those factors to defendant and K.L.R., Dr. DeNigris opined that the child "exhibited minimal, if any, exploratory behaviors throughout the evaluation," and that "[a]lthough [defendant] attempted on several occasions to engage [K.L.R.] in playing with toys, the child either moved away from her or appeared disinterested." Dr. DeNigris further observed "noticeable periods of silence" during the interactions and that defendant fell asleep during the bonding evaluation. When that occurred, Dr. DeNigris observed that K.L.R. "appeared confused. . . ." Defendant awoke at one point and asked the child, "So, are you sleepy like Mommy?" Defendant then closed her eyes, but later opened them briefly and asked K.L.R., "You['re] having fun by yourself, aren't you?"
Dr. DeNigris opined that defendant's "inability to remain awake in order to consistently monitor and supervise her daughter during this evaluation raise[d] much concern about the child's safety when in [her] care," adding that it was "clearly inappropriate for a caretaker ...