On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-151-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, Yannotti and LeWinn.
These two appeals, which we decide in this opinion, arise from proceedings in the Family Part that culminated in the termination of defendant S.M.'s parental rights to his minor child, B.S.M., and the approval of the permanency plan proffered by the Division of Youth and Family Services (DYFS) that B.S.M. be adopted by his foster parent. In Docket No. A-6115-07, S.M. appeals from the June 27, 2008 termination order. In Docket No. A-5890-07, DYFS appeals from the provision in the June 27, 2008 order that the "paternal grandmother [C.M.] shall be given a 5A form and appointed counsel so that she may be represented in a best interests hearing" regarding B.S.M.'s placement.*fn1
For the reasons that follow, we affirm the part of the June 27, 2008 order terminating S.M.'s parental rights; and we reverse the portion of the order granting C.M. the right to a best interests hearing.
The pertinent factual background may be summarized as follows. B.S.M. was born to Y.R. and S.M. on August 25, 2001. As a result of Y.R.'s chronic drug addiction, B.S.M. tested positive for opiates and methadone at birth. Following approximately two months of inpatient treatment, B.S.M. was released to the custody of S.M. and C.M.
B.S.M. remained in the custody of his father and paternal grandmother for approximately three-and-one-half years. On February 4, 2003, the Family Part entered an order, under Docket No. FD-07-4692-03, granting joint legal custody of B.S.M. to S.M and C.M.
S.M. was subsequently incarcerated. B.S.M. continued in C.M.'s custody until January 31, 2005. On that date, C.M. left the child in the care and custody of Y.R., who had been released from a drug treatment program approximately one week earlier.
While caring for B.S.M., Y.R. took a large amount of Xanax*fn2 and passed out in the middle of a street Y.R. and the child were transported to the hospital and DYFS was contacted. B.S.M. was immediately placed in protective custody through an emergency removal. Because of the incident of January 31, 2005, DYFS sought the immediate removal of B.S.M. from C.M.'s custody. Y.R. was arrested and charged with child endangerment.
On February 2, 2005, DYFS filed an order to show cause and complaint against Y.R. and S.M. seeking guardianship of B.S.M. C.M. was never added as a party to the guardianship proceedings.
C.M. appeared as a witness on behalf of S.M. at the hearing on the order to show cause, and expressed interest in having B.S.M. returned to her. DYFS objected, however, arguing that it had been C.M.'s action in leaving the child with Y.R. that had precipitated the removal proceedings.
Y.R. executed a voluntary surrender of her parental rights to B.S.M. The court then proceeded to trial regarding S.M.'s parental rights. The trial evidence established the following.
S.M. acknowledged that he had been arrested about thirty times and had spent approximately six years in incarceration. Upon S.M.'s release from incarceration in March 2005, DYFS offered him substance abuse treatment services. S.M. signed a written case plan agreeing to comply with DYFS's drug treatment referrals, and successfully completed a seven-day detoxification program in January 2006; however, he refused any additional treatment beyond that. In February 2006, S.M. failed to comply with a DYFS referral to an inpatient program at Integrity House. This pattern of rejecting DYFS drug treatment referrals continued unabated. On December 20, 2007, S.M. tested positive for heroin and cocaine. In March 2008, S.M. advised a substance abuse assessor that he was using heroin daily; he also testified positive for opiates at that time.
In December 2007, Andrew P. Brown, III, Ph.D., conducted a psychological evaluation of S.M. on behalf of DYFS. During that evaluation, S.M. told Dr. Brown that he continued to use heroin and that he had an extensive criminal record, including an arrest as recent as September 2007. S.M. stated that he would "love to be with" B.S.M., but described his life as "a gamble . . . ."
Dr. Brown opined "[w]ithin a reasonable degree of psychological certainty" that S.M. was not presently capable of parenting B.S.M. and, given S.M.'s "chronic narcotic addiction without completion of formal treatment, sustained legal difficulties, and poor insight[,]" the doctor had little confidence that S.M. would ever gain the ability to parent B.S.M.
After B.S.M.'s removal from C.M.'s custody, the child was placed with several different family members; however, each relative was ultimately found unacceptable for various reasons, including causing physical harm to B.S.M. and exposing the child to sexual assault while in their custody.
On January 25, 2007, B.S.M. was placed in a therapeutic foster home, where he has remained ever since. His foster mother has dealt with B.S.M.'s frequent episodes of disruptive behaviors at home and school, but nonetheless is committed to adopting him.
DYFS arranged visitation for S.M. and C.M. with B.S.M. during the litigation. In November 2007, B.S.M.'s foster parent reported that the child was exhibiting disruptive behavior following visits with S.M. In March 2008, the trial judge suspended S.M.'s visitation with B.S.M. based upon evidence that those visits were detrimental to the child.
Dr. Brown submitted an evaluation in connection with the visitation issue, and opined that "sustained visits with [S.M.] induces psychological decompensation characterized by emotional, behavioral, and social turmoil in [B.S.M.] to such an extent that he recently required psychiatric hospitalization."
S.M. testified at trial. He proffered no expert testimony in rebuttal to Dr. Brown's opinions, however. Nor did he offer any explanation for his failure to complete or cooperate with any DYFS-referred drug treatment programs over the prior three years. S.M. admitted that he had used heroin during the week before trial. He stated that he did not address his drug problem because he wanted his mother, C.M., to take custody of B.S.M.
C.M. also testified and acknowledged that she knew S.M. had abused heroin for many years, including during the time that B.S.M. lived with the two of them. Nothwithstanding this, she permitted S.M. to have unsupervised contact with B.S.M. C.M. testified that she did not believe that S.M.'s drug use posed a risk to B.S.M. because she did not allow S.M. to bring heroin into her home.
C.M. acknowledged that she had received a rule-out letter from DYFS on March 5, 2008, excluding her as an acceptable resource placement, and that she had consulted with an attorney upon receipt of that letter; however, she did not appeal the decision.
C.M., who was seventy-five years old at the time of trial, testified that if she became too frail or weak to care for B.S.M., her son D.M. and his wife in North Carolina were willing to raise the child. DYFS caseworker Chemise Bryant testified, however, that DYFS had received no correspondence from D.M., nor any response to inquiries as to his interest in caring for the child.
The trial judge rendered a decision from the bench at the conclusion of all the testimony, finding that DYFS had met its burden of proof by clear and convincing evidence of the four statutory prongs in N.J.S.A. 30:4C-15.1(a)(1) to (4). The judge noted that the evidence of S.M.'s inability to parent and to eliminate the risk of harm to B.S.M. was essentially undisputed. The judge expressly rejected S.M.'s contention that although he continued to abuse drugs and did not seek treatment, he would not pose a risk of harm to B.S.M. Citing In re Guardianship of K.H.O., 161 N.J. 337 (1999), the judge found that S.M.'s drug abuse, in and of itself, constituted harm to the child. Likewise, the judge found that S.M.'s unabated drug use prevented him from providing B.S.M. with "a safe and stable home" in the foreseeable future.
The trial judge further determined that additional delay in B.S.M.'s permanent placement would compound the harm facing the child. The judge noted that B.S.M. had been in foster care for the past three years and had been in his therapeutic foster home for the past eighteen months. The judge accepted the bonding evaluation conducted by Dr. Brown, which concluded that B.S.M. had bonded to his foster parent.
The judge further found that DYFS had made reasonable efforts to help S.M. address his drug addiction problems in attempting to reunify him with B.S.M. The judge noted that S.M. ...