On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-25-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Collester.
Defendant, H.C., appeals from a judgment of guardianship terminating her parental rights to her sons, D.T., who was born on September 9, 2002, and J.D., who was born on October 13, 2006.*fn1 Defendant argues that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of establishing all four prongs of the best interests of the child test. The Division disagrees and the law guardian supports the Division's position that the termination should be upheld. We reject defendant's argument and affirm.
Defendant was born on December 7, 1985. She suffers from congenital heart problems and has used a pacemaker since early childhood. She has undergone multiple surgeries to address this issue. She dropped out of school in the tenth grade and has made two unsuccessful attempts to earn her GED.
When D.T. was born on September 9, 2002, defendant was seventeen years old. She never lived with D.T.'s father, M.T., and he has never had any involvement in D.T.'s life.
In 2003, defendant married W.G. This was apparently an arranged marriage of convenience for the purpose of enabling W.G., an alien, to legitimize his presence in this country. In exchange, defendant was to receive monetary considerations and a home. The marriage was short-lived and marked by abuse. A domestic violence incident occurred on November 22, 2003. The police responded. Defendant admitted assaulting W.G. The police contacted DYFS because this was their second response to a domestic violence call involving defendant. D.T. was in defendant's home during both police responses, but defendant denied that D.T. witnessed the incidents. DYFS investigated but did not substantiate neglect.
Defendant later reported that W.G. abused her and she sought a domestic violence restraining order, which was denied on September 8, 2004. At some point, W.G. was deported, apparently for assaulting someone with a bat. The marriage of W.G. and defendant was annulled. Defendant became romantically involved with P.D., and later reported that he was abusive toward her.
On April 4, 2005, defendant's mother reported to the Division that defendant used crack cocaine and marijuana in D.T.'s presence. The Division investigated but did not substantiate neglect.
Defendant was arrested on February 2, 2006 for her involvement in prescription drug fraud. She knowingly used a stolen, fraudulent prescription to obtain Valium on two occasions in January 2006. She used another stolen, fraudulent prescription to obtain Percocet on January 29, 2006. The police reported defendant's arrest and drug charges to the Division. Although the Division investigation found no neglect, the Division remained involved with defendant. On February 24, 2006, M.T.'s sister, S.T., contacted the Division and reported that defendant had recently driven D.T. while under the influence of alcohol.
On May 30, 2006, the Division developed a case plan, which included a provision that defendant would refrain from drug and alcohol use and complete a substance abuse evaluation. At the evaluation, the Division learned for the first time that defendant was six months pregnant. She had not obtained any prenatal care. Because of her heart condition, this pregnancy was a risk to defendant's health. Defendant apparently had considered an abortion, but was ineligible because of the advanced stage of her pregnancy and her underlying heart problem.
In June and July 2006, the Division arranged for prenatal care, drug counseling appointments and parenting classes for defendant. D.T.'s teeth were in a severe state of decay, and the Division offered to coordinate dental care, but defendant failed to cooperate.
Defendant refused to provide a random urine sample on July 19, 2006. Defendant was resistant to services offered by the Division.
On August 1, 2006, the Division requested custody of D.T., which was granted. Defendant threatened to harm herself and a Division worker. The court ordered a mental health commitment, which occurred from August 5 to August 7, 2006. Defendant was diagnosed with anxiety disorder.
D.T. was placed in the care of his paternal aunt, S.T., and her husband. He has remained with them ever since. At the time of this placement, D.T. was nearly four years old. He was not toilet trained. He did not know how to eat with utensils or chew his food. He could not climb or descend stairs. His behavior was marked by significant anger. He cursed and acted out violently. He showed signs of delayed development, Attention Deficit Hyperactivity Disorder (ADHD), and early deprivation and neglect. He had cavities in sixteen of his twenty teeth and required extensive dental work. He was not current with his immunizations, although defendant disputed this at trial. He was born with a slight hole in his heart but had not seen a cardiologist in nearly three years.
S.T. took D.T. to various medical and developmental evaluations and obtained the required dental and medical care for him. Defendant was ordered by the court to attend D.T.'s medical appointments, but she failed to do so. D.T. was diagnosed with reactive attachment disorder and began family therapy with S.T. D.T. was prescribed medication for ADHD and began physical and occupational therapy. In December 2006, S.T. enrolled D.T. in a special education preschool program that involved occupational, physical and speech therapy.
After D.T.'s removal, defendant completed an outpatient drug treatment program that had been arranged by the Division in September 2006. On October 13, 2006, defendant gave birth to J.D. The Division obtained custody of J.D. immediately after his birth. J.D. was placed with his brother in the care of S.T. and her husband upon his release from the hospital on October 18, 2006. J.D. has remained with these caregivers continuously since that time.
Defendant began weekly supervised visits with the children at S.T.'s home in October 2006. She attended the visits inconsistently, arriving late and failing to attend without prior cancellation. The in-home visits had an upsetting effect on D.T., who reacted by defecating in his bed and elsewhere after the visits. DYFS arranged for the visits to take place outside S.T.'s home. The visits ...