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New Jersey Division of Youth and Family Services v. M.M.B.

October 27, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket Nos. FG-15-60-07 and FN-15-04-07.

Per curiam.



Argued September 29, 2009

Before Judges Reisner, Yannotti and Chambers.

In these back-to-back appeals, M.M.B. appeals the order of September 19, 2006, continuing her son A.J.T.'s placement in the custody, care, and supervision of the Division of Youth and Family Services (Division), and the order of January 23, 2008, terminating her parental rights to A.J.T. We affirm.


We discern from the record the following salient facts and procedural history. A.J.T. was born on June 23, 2005, to M.M.B. and A.T.*fn1 The Division's involvement with this child began on July 10, 2006, when the Division received an anonymous call that M.M.B. was using heroin and methadone and that M.W., the child's grandmother, used marijuana. In response, the Division sent a caseworker to the home where the child lived with his mother, aunt, maternal grandmother, and step-grandfather. The grandmother acknowledged that she and her husband smoked marijuana regularly, and advised that she had done so forty-five minutes before the worker's visit. The caseworker observed that the grandmother's eyes were dilated. The grandmother also indicated that until recently, A.T., the child's father, had lived in the household and that he was a heroin user. In addition, M.M.B. still saw him daily. The grandmother also had an open Division case regarding another daughter. She advised that M.M.B. was in recovery for heroin use and had been attending a methadone clinic for the past three weeks. The child attended day care, and M.M.B., the grandmother, and step-grandfather were all employed. The home was found to be in an unkempt condition.

The caseworker's attempt to put in place a safety protection plan met resistance. M.M.B. declined to sign releases allowing the Division to obtain her urine screens from the methadone clinic. The grandmother refused to stop smoking marijuana or to complete a treatment program. The step-grandfather was uncooperative. As a result, the child was removed from the home on an emergent basis under N.J.S.A. 9:6-8.29. A medical exam revealed that the child was healthy.

The Division filed a Title 9 protective services complaint pursuant to N.J.S.A. 9:6-8.21 to -8.73, with docket number FN-15-04-07, (the protective services action) against M.M.B., the grandmother, and step-grandfather, seeking the continuing care and custody of A.J.T. At the hearing on July 12, 2006, the Division advised the court that M.M.B. had stopped going to the methadone clinic on July 3, 2006, and that she had not provided the clinic with her urine screens. Without receiving methadone, M.M.B. would be very sick unless she had gone back to taking the heroin. M.M.B. acknowledged that she had been a heroin user since the age of seventeen; she described her desire to be free of this habit; and she explained why she left the methadone clinic. The grandmother testified that she did not take marijuana and that she had lied to the caseworker about her use of that drug allegedly in order to keep the Division involved regarding her other daughter.

The trial court issued an order to show cause why the child should not remain under the custody, care and supervision of the Division. On the return date, provisions were made for defendant to undergo psychological and substance abuse evaluations and to attend parenting skills training, and the child was continued in foster care.

At the subsequent fact-finding hearing on September 19, 2006, M.M.B. stipulated to abuse and neglect, namely, that due to her ongoing substance abuse issues, she was in need of the Division's services to stabilize herself and have A.J.T. returned to her care. Thereafter, M.M.B. tested positive for opiates and missed several visits, parenting classes, and substance abuse evaluations.

In a psychological evaluation conducted on October 12, 2006, Dr. Alan J. Lee found that M.M.B.'s "overall cognitive and intellectual functioning appears to be fairly adequate and free of severe overall deficits or disease." Although M.M.B. was found to be immature with "some maladaptive aspects of her personality functioning," Dr. Lee found at that time that reunification of M.M.B. with her child was a viable goal. He recommended that she undergo an updated substance abuse evaluation, urine monitoring, psychotherapy, parenting education, and vocation or occupational training. In his psychological evaluation of the grandmother dated October 19, 2006, Dr. Lee recommended that certain services also be provided to her before reunification.

In December 2006, M.M.B. was admitted to a detoxification facility due to her drug use. M.M.B. successfully completed the program. On March 1, 2007, A.J.T. was returned to her, and the mother and child were placed in a "Mommy and Me" program in a halfway house. An order was entered on March 19, 2007, finding that the Division's plan for the child's reunification with M.M.B. was appropriate and acceptable.

On April 25, 2007, less than two months after M.M.B. entered the "Mommy and Me" program, the Division learned that M.M.B. had relapsed and taken heroin. She tested positive for opiates, and the child was removed from her care on an emergent basis. Shortly after that removal, the child was placed with the foster parents who previously had cared for him. He was still with those foster parents at the time of the termination hearing.

At the court hearing of May 30, 2007, M.M.B. stipulated to a finding of abuse and neglect on the basis that she had relapsed, thereby placing the child at risk. The court entered a permanency plan for termination of M.M.B.'s parental rights. M.M.B. did not consent to this plan, and the Division agreed to continue to provide her with services. On July 16, 2007, the Division filed a Title 30 guardianship complaint pursuant to N.J.S.A. 30:4C-15 with docket number FG-15-60-07 to terminate M.M.B.'s parental rights (the termination of parental rights action), and the protective services action was dismissed.

M.M.B. did not appear for the guardianship trial for the termination of her parental rights held on January 23, 2008. Her attorney advised the court that his client had contacted him the preceding day to advise that she was in California, hoping to be admitted into a substance abuse program there. He requested that his client be allowed to appear by telephone so that she could hear the Division's case. The court denied this request, explaining that the court would not be able to identify the person on the phone. Although the State requested that M.M.B.'s failure to appear be treated as a default, the judge did not grant that request. M.M.B.'s attorney was given an opportunity to object to the admission of the Division's exhibits into evidence, to cross-examine its witness, to present evidence, and to make a closing statement, although he did not do so. The judgment terminating M.M.B.'s parental rights states that it was entered after a trial, not after a proof hearing.

At trial, the Division presented the testimony of an adoption specialist working for the Division and voluminous exhibits reflecting the facts noted above were admitted into evidence. The witness recounted the various services the Division had offered M.M.B., including parenting classes, substance abuse and individual counseling, psychological evaluations, a thirty-two day in-patient program, and the "Mommy and Me" program. The witness also enumerated the various relatives who had been approached about placement and testified that those inquiries proved unsuccessful. She indicated that A.J.T.'s current caretakers, who had cared for him for a total of thirteen months by that time, wanted to adopt him.

Dr. Lee's psychological evaluations of M.M.B. and the maternal grandparents and the bonding evaluations of the child with M.M.B. and the foster parents were included in those exhibits. In his psychological assessment of M.M.B. on November 20, 2007, Dr. Lee found that M.M.B. "remains a very heightened risk for substance abuse relapse." Noting her recent relapse, Dr. Lee wrote that she continued to have problems "despite her having been involved in numerous and repeated efforts to abate her substance abuse." He did not recommend A.J.T.'s reunification with M.M.B. as a permanent plan for the child. By June 28, 2007, Dr. Lee had conducted psychological evaluations of the grandmother and step-grandfather, and for the reasons expressed in his reports, he did not recommend that they serve as independent caregivers for A.J.T.

In his bonding evaluations conducted on December 17, 2007, Dr. Lee found that while the child recognized his mother and "seems to enjoy some elements and the interaction that they have," he nonetheless concluded that "there appears a relatively low risk of severe, enduring, or irreparable psychological harm to [A.J.T.] if his relationship with his birth mother was permanently ended." With respect to A.J.T.'s foster parents, Dr. Lee found that A.J.T. had "formed a significant psychological attachment and ...

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