On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-69-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Parrillo and Ashrafi.
Defendant W.G. appeals from the judgment of the Chancery Division, Family Part, terminating her parental rights so that her now seven-year-old daughter can be adopted by W.G.'s mother. W.G. contends that the judgment is against the weight of evidence and does not satisfy the four criteria established in N.J.S.A. 30:4C-15.1a for termination of parental rights. The Division of Youth and Family Services (DYFS or the Division) and the Law Guardian for the child both argue for termination of parental rights followed by adoption.
We affirm the family court's judgment. The court carefully considered the evidence as it applies to the four criteria listed in the statute and concluded by the clear and convincing standard of proof that it is in the best interests of the child to proceed to adoption. We find substantial credible evidence in the record to support the court's findings of fact and the conclusions of law based on those findings.
As did the judge in the family court, we too note the conflict of our law with the opinions of the expert evaluators in this case, who uniformly concluded that the best interests of the child also favor a continuing relationship with her biological mother. See In re Guardianship of J.N.H., 182 N.J. 29, 31-32 (2004) (issue discussed in majority opinion and dissenting opinion of Long, J.). Neither the applicable statutes nor our case law can guarantee both adoption and a continuing relationship with a biological parent. The Supreme Court has said that such so-called "open adoptions" are a matter of social policy that is appropriate for legislative consideration. In re Guardianship of K.H.O., 161 N.J. 337, 361 (1999); In re Adoption by D.M.H., 135 N.J. 473, 493-94 (1994); see also N.J. Div. of Youth & Family Servs. v. S.S., 187 N.J. 556, 562-63 (2006) (commending to legislative consideration the issue of post-adoption rights of visitation by siblings).
For purposes of this case, we conclude that the family court addressed the conflict to the best of its ability and in accordance with existing law.
W.G. is a thirty-four year-old, drug-addicted, single mother of two girls. This appeal concerns her older daughter, A.G., born in early 2002. After a series of hearings and a twoday trial, the family court entered a judgment on October 18, 2008, terminating W.G.'s parental rights and placing A.G. in the custody of DYFS pending her adoption by M.G., who is W.G.'s mother and A.G.'s grandmother. The judgment was based on the following facts developed during trial and earlier proceedings in the family court.
W.G. was born in the Dominican Republic. As a very young child, she witnessed turbulence in the relationship of her mother and father. She immigrated to the United States with her mother M.G. and never saw her father again. She lived with her mother and siblings in New Jersey, and she graduated from high school at the age of nineteen. Later, she told the evaluating psychologists and psychiatrist that her mother had been physically abusive when disciplining her and her siblings. Although DYFS had become involved on one occasion, the allegation of abuse against M.G. was not substantiated. DYFS counseled M.G. about appropriate discipline for her children and had no further involvement.
W.G. began exhibiting symptoms of psychological conditions in her teenage years, including chronic depression and severe anxiety. The psychiatrist who evaluated her in 2008 diagnosed her as suffering from the effects of drug abuse, anxiety disorder NOS ("not otherwise specified"), personality disorder NOS, and post traumatic stress disorder.
W.G. began abusing marijuana, cocaine, and other drugs at the age of twenty-two. She gave birth to A.G. when she was twenty-six. She denied using drugs during the pregnancy. W.G. stated under oath in court that she did not know the identity of A.G.'s father. She told the evaluating doctors that A.G.'s father was also a drug abuser with whom she had sexual contact only once, apparently consensual. M.G., however, reported to DYFS that W.G. had been raped and was seriously distraught during her pregnancy.
After A.G.'s birth, W.G. and A.G. lived with M.G. and W.G.'s half-sister. In December 2005, W.G. gave birth to another daughter. The younger daughter is not part of this appeal, her biological father having obtained custody after the children were removed from the custody of W.G.
In about March 2006, within months after her younger daughter's birth, W.G. began using crack cocaine. On July 24, 2006, a relative called DYFS to report that W.G. was smoking crack in her home while the children were present and that she was fighting physically with her mother M.G. about her use of illegal drugs. DYFS immediately began an investigation. W.G. denied using drugs in the presence of her children and initially resisted drug testing. After agreeing to be tested, she admitted that she had used cocaine the night before. The drug screen conducted on July 25th was positive for cocaine, and another conducted on July 31st was positive for marijuana.
Because the children seemed safe, DYFS left them in the home under M.G.'s supervision and directed W.G. to undergo evaluation by a certified alcohol and drug counselor. The counselor recommended that W.G. attend intensive outpatient drug rehabilitation treatment. Following that advice, W.G. began outpatient treatment at Health Path Outpatient Substance Abuse Treatment Program on August 10, 2006.
Two days later, on August 12th, M.G. called the police to report that W.G. was again under the influence of drugs, was acting erratically, and would not allow M.G. to leave the home with the children. The police responded and contacted DYFS. A special response unit of DYFS came to the home and determined that the children should be immediately removed from the custody of W.G. and the home. A drug screen of W.G. on August 14th was positive for cocaine.
On August 15, 2006, DYFS filed with the family court an application for an order to show cause and a verified complaint for legal and physical custody of the children. Upon their emergency removal, the children were initially placed in the temporary custody of the younger girl's father. Within a few days, however, DYFS determined that its investigation of M.G. years earlier had not substantiated abuse and that A.G. could be safely returned into M.G.'s care. On August 17, 2006, A.G. returned to M.G.'s home, and she has lived there continuously since that time under the care of M.G.
While attending outpatient treatment at Health Path, W.G. continued to use drugs, and her drug screens were positive on several occasions during the next several months. Also, she repeatedly missed scheduled appointments for treatment.
On September 6, 2006, the family court conducted a hearing to consider the application of DYFS for custody of the children. W.G. stipulated that she had used illegal drugs and was in need of drug treatment. The court ordered that A.G. continue in the physical custody of M.G. while W.G. attended psychological and substance abuse evaluation and treatment. Although the September 6 order did not refer to W.G.'s living arrangements, DYFS directed W.G. to stay out of the home and to visit with A.G. only under the supervision of M.G.
A few days later, M.G. called DYFS to report that she and W.G. had argued during a visitation. On October 13, 2006, M.G. reported to DYFS that she had taken W.G. to a hospital because W.G. had smoked crack and said that her body felt paralyzed. On October 17th, Health Path reported to DYFS that it had called an ambulance to take W.G. to a hospital because she was talking about suicide. W.G. was admitted for psychiatric evaluation and remained hospitalized for one week. The DYFS case worker visited W.G. to discuss plans for her rehabilitation and reunification with her children.
On October 31, 2006, W.G. was evaluated by Robert Kanen, Psy.D. In his report to DYFS, Dr. Kanen reached the following conclusions:
[W.G.] shows evidence of severe parenting deficits at this time. She is mentally ill, suffering from bipolar disorder which goes from manic episodes to severe depression. She abuses crack cocaine and goes on crack cocaine binges. Her cognitive functioning indicates that her problem-solving skills and capacity to function in daily life are severely compromised by mental illness and substance abuse. She is presently homeless with no viable plan or goal to provide a safe, secure or permanent home for her children.
She was hospitalized two weeks ago and as recently as October 17, 2006 was experiencing suicidal ideation. She is emotionally unstable, erratic and undependable. She admits that she does not have the energy to concentrate on her everyday responsibilities anymore. She reports being severely depressed at this time. She is in acute distress.
Dr. Kanen concluded that the children would be exposed to a risk of harm if returned to W.G.'s custody. He recommended that W.G. continue with psychiatric treatment and medication, attend individual psychotherapy, and enroll in an inpatient treatment facility for mentally ill/chemically addicted ("MICA") patients.
At about the same time, W.G. told DYFS that outpatient treatment was not working for her and she needed inpatient rehabilitation.
On November 2, 2006, the court conducted a compliance review. W.G. did not attend. The court ordered that W.G. continue with outpatient treatment pending placement in an inpatient facility. The court's order expressly prohibited W.G. from residing in M.G.'s home but granted visitation under M.G.'s supervision.
W.G. continued to use drugs, and periodic drug screens at Health Path were reported positive for use of cocaine. DYFS had difficulty placing her in an inpatient program because she did not have insurance and declined to apply for welfare so that she would be covered by Medicaid. In late November 2006, W.G. told DYFS that she was no longer interested in attending an inpatient program because it was taking too long to place her. In January 2007, W.G. was terminated by the Health Path ...