On appeal from the Superior Court, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-0038-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2009
Before Judges C.L. Miniman and Waugh.
Defendant V.A.L. (mother) appeals from a July 2, 2008, final judgment of guardianship awarding custody of A.M.L. (baby or child) to plaintiff Division of Youth and Family Services (Division) and terminating the mother's parental rights. We affirm.
The history of the mother's involvement with the Division prior to the institution of this action is relevant to the termination of her parental rights. The thirty-year-old mother gave birth to her first child on February 8, 2003. A hospital social worker made a referral to the Division on February 10, 2003, because the mother, who had bipolar disorder and was due to be released that day, had tested positive for cocaine on January 7, 2003. However, the social worker making the referral noted the mother and baby were clean at birth and the mother was being referred to the Family Intervention Program run by the Association for Retarded Citizens (ARC). When the Division called the hospital social worker, she reported that the mother had been under the care of a psychiatrist prior to the birth and was being discharged with psychotropic medications.
The Division investigated the referral, visiting the mother and baby at their home on February 14, 2003. The mother told the Division worker that she had been seeing a psychiatrist, Dr. Jones, for three years; he took her off her medication when he learned she was pregnant; and she would return to his care the following week. The mother stated her housing was stable when she had been taking her medication. She had previously received Medicaid and HUD assistance and was in the process of reapplying for both benefit programs. She reported her paternal uncle M.L. and his wife were financially and emotionally supportive, her cousin J.J. had been helping her with the rent, and her aunt Gloria was emotionally supportive.
The mother began attending the ARC program on February 27, 2003, and continued to receive ARC services until October 25, 2005. ARC sent monthly reports to the Division during that entire period of time. In the beginning, ARC reported the mother's regular participation to the Division and noted the baby was "always dressed appropriately and smells wonderfully clean like a baby should." ARC expressed no concerns about the care being provided by the mother during the first three months, although the mother had a number of excused absences.
The Division had the mother attend a substance-abuse evaluation on April 17, 2003. The examiner found the mother was stable on her medication; there was a medium risk the mother could relapse; and the examiner recommended Level II Intensive Outpatient care, family counseling, a Twelve Step Recovery Program, home group, and sponsor. An ARC occupational therapist evaluated the baby on July 17, 2003, and found that her motor skills were below average for her age. The therapist was concerned about the quality of her movements and recommended referral to Special Child Health Services.
On October 23, 2003, the mother sought treatment at the Community Mental Health Center for Gloucester County. The resulting report documented the mother's struggle with bipolar disorder, anxiety, and depression. The attending therapist found the mother appropriate for outpatient counseling and noted she would require a diagnostic evaluation by a psychiatrist or nurse practitioner. The following week an examiner diagnosed her with bipolar disorder, gave her three prescriptions for medication, and approved psychotherapy for her.
On November 22, 2003, the mother was arrested after being seen with a black male who was talking with a white male subsequently arrested for possession of marijuana. The mother, who initially gave a false name, was arrested on an outstanding warrant from Gloucester Township resulting from her failure to appear in court on a single traffic ticket. She was also charged with trespassing and hindering apprehension by supplying a false name.
While the mother was at the scene of the arrest, she made some references to her eight-month-old baby being left somewhere, which was investigated by another officer. Initially, the mother lied about who was taking care of the baby; after police began searching for the baby, a woman called the police in a third town to say she was caring for the baby but was too drunk to do so. When the police arrived at the woman's apartment, she appeared intoxicated and was drinking from a vodka bottle. The responding police officers brought the baby to police headquarters. Because the mother was to be transported to the Camden County Jail, the police called the Division for assistance. While the Division Special Response Unit (SPRU) worker was at the police station, it was determined that the mother was to be released on her own recognizance. The mother admitted that the woman was a "working alcoholic" but said she was sober when she left her baby with her so she could go for a walk. The Division, which substantiated neglect, performed an emergency Dodd*fn1 removal and temporarily placed the baby with the mother's half-sister and her husband and explained the Kinship Care Program.
The Division secured an order on November 24, 2003, requiring the mother to show cause on December 16, 2003, why an order should not be entered continuing the baby under the care, custody, and supervision of the Division. On the return date, the judge approved a reunification plan submitted by the Division, requiring the mother to attend parenting classes, as well as substance-abuse evaluation and treatment, and to continue with ARC, NewPoint Behavioral Health (NewPoint), and Robins' Nest, Inc. (Robins' Nest). The court-ordered plan granted the mother parenting time, which included overnight visitations and weekends, with reunification to occur when the Division deemed it appropriate.
The mother began attending a Pacesetters Parent Education Program at Famcare, Inc., (Famcare) on March 1, 2004, and completed the program on April 19, 2004. Famcare recommended further parenting classes when the baby became a toddler.
On March 23, 2004, the mother also went to SODAT of New Jersey, Inc. (SODAT), a rehabilitation facility for young people, for a drug and alcohol evaluation. SODAT reported that the mother tested negative for drugs and alcohol and only tested positive for her prescribed medication. SODAT recommended that the mother take part in an outpatient treatment program and submit to future drug screenings. The Division approved this and the mother remained drug free until she was discharged from the SODAT program on February 15, 2005, having successfully completed the program.
Throughout the mother's interactions with the Division, she underwent three psychological evaluations by Ronald S. Gruen, Ed.D. As of the time he first evaluated her, March 9, 2004, she had been seeing her child twice a week, and the Division worker reported those visits were positive, with each enjoying the other's company. The mother reported to Dr. Gruen that she had bipolar disorder. Dr. Gruen's tests led him to conclude she also had Personality Disorder NOS. He recommended that the mother continue taking her prescribed medications, take part in a rehabilitation program that included psychiatric monitoring, and receive ongoing individual therapy, parenting skills training, and continued supervised visitation. Dr. Gruen supported increasing the amount of visitation upon the mother's progress in the recommended programs, but cautioned that close monitoring of the mother was necessary because recidivism is high in individuals suffering from bipolar and personality disorders.
At a case management review on March 29, 2004, the judge ordered that legal and physical custody of the baby could be returned to the mother's custody upon the oral approval of Dr. Gruen, so long as the mother continued with treatment and she received a positive psychological evaluation. At that time, the mother stipulated she left her child with a known alcoholic and waived a fact-finding hearing.
In mid-August 2004, the Division's goal was reunification in eight weeks. Robins' Nest began supervising visitation at the mother's home on August 25, 2004.*fn2 By early October, Robins' Nest reported everything had been going very well and recommended partially unsupervised visits.
The court-ordered visitation and treatment plan was reviewed again on October 18, 2004, and unsupervised overnight visitation was to begin at the end of the month. The mother was to continue with ARC, NewPoint, and Robins' Nest. Reunification was the approved permanency plan. Weekend visitation through Robins' Nest began in late November. Visitation was consistently accepted by the mother. Robins' Nest prepared a positive mid-case summary on January 4, 2005, and recommended reunification. As a result of the mother's compliance with the mental-health and substance-abuse programs, the judge returned the child to her custody on January 24, 2005. The judge ordered the mother to continue her mental-health treatments and participate in services provided by ARC, SODAT, and NewPoint. The judge also required that the Division continue monitoring the mother for two months and dismissed the litigation.
Robins' Nest prepared a termination summary on January 31, 2005, and recommended that the mother participate in the Family Ties Aftercare Program, which began on February 11, 2005. ARC continued to provide services and reported issues with the mother's attendance, money problems, stress and trouble sleeping. The mother reported additional difficulty with personal relationships to the Division on March 31, 2005, and the worker in response made arrangements for the Division to provide a three-month daycare voucher. The mother was compliant with the Robins' Nest weekly aftercare sessions, although she missed her April 28, 2005, session because she was sleeping. She also had not completed the daycare paperwork and taken her child to a pediatrician to have the paperwork signed. On March 29, 2005, the Division was to provide new paperwork for daycare and on May 11 it reported it expected daycare to start the next week.
The mother had been advised to apply for SSI, but did not open the letter denying her application and, thus, missed the period to appeal the agency decision. She subsequently reap-plied in May 2005. It was around this time that the mother was referred to SODAT's vocational rehabilitation program, but she never contacted them. ARC also provided the mother with a job listing.
While these services were being provided, the Division received an anonymous referral that the mother and her boyfriend were fighting and the boyfriend accused her of draining his bank account to buy cocaine. The Division investigated and concluded that the referral was unfounded. Otherwise, the Division workers reported favorably about the care being provided by the mother and stated her apartment, its furnishings, and the food supply were all appropriate.
On May 3, 2005, ARC reported that the mother had been to the emergency room regarding pain from an infected molar. On a home visit a few days later, an ARC worker found that the mother was confused about what day of the week it was, her eyes were glassy, and she complained she was dizzy and nauseated, although she insisted she was "fine." On May 11, 2005, she went to an emergency room where she was diagnosed with anxiety and an allergic reaction to medication. She was given Benadryl and Darvocet.
On May 12, 2005, ARC conducted a scheduled home visit and reported to the Division that the mother had been to the emergency room because she was ill from anxiety and an allergic reaction to medication. At that time, the mother seemed coherent, but also sick, tired, and overwhelmed, telling the home visitor, "I can't do this by myself." The Division worker took the mother for her scheduled psychiatric evaluation that day. The next day, the Robins' Nest worker expressed concern about the mother's health and its effect on her ability to care for the child.
On May 17, 2005, ARC reported that the mother's condition had deteriorated, she was in pain, had blurred vision, was slurring her words, and had become exhausted. The mother explained that her behavior resulted from taking the medications prescribed by the doctor in the emergency room to address her allergic reaction to the other medications she was taking. ARC alerted the Division to the mother's condition and requested that a Division social worker be sent to visit the mother at home.
The Division investigated the same day. The social workers observed that the mother was slurring her words and "was having a hard time walking down the hallway and keeping her eyes open." The mother claimed that she was so tired because of the medicine she was taking and had not slept the night before. The social workers talked to their supervisor and a determination was made that the child could not be left alone with the mother. When the neighbor was not available to supervise, the Division determined to effect a Dodd removal, but the mother became distraught and so the social workers took the mother to crisis care. When the Division social workers returned to their office with the child, they noticed that she was dirty and her hair was matted. Later that night after the child was medically cleared, she was placed with foster parents.
As a result of the removal, Family Preservation Services closed its file that day, recommending a partial hospitalization program that would offer therapy to the mother and daily medication monitoring. The counselor reported that the mother told them she had taken Nyquil on top of the Benadryl because she was having trouble sleeping. In her discharge summary, she also opined that the Benadryl prescribed for the mother might have been interacting with her other medications and the Xanax might have been interfering with them.
On May 18, 2005, the Division filed a second verified complaint pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12 alleging child abuse or neglect by the mother. The next day, the judge signed an order placing the child "in the immediate custody, care and supervision" of the Division. The mother was present at this initial hearing, seemed upset, and her pupils were dilated. The judge granted the mother supervised parenting time, but required that she continue taking parenting classes at ARC and follow the recommendations set forth in her psychiatric evaluations.
The Division received a report from Dr. David J. Rissmiller on May 19, 2005, regarding his evaluations of the mother on April 11 and May 11, 2005. Dr. Rissmiller noted that the mother had been under psychiatric care at South Jersey Behavioral Health for a couple of years and was then seen by a private psychiatrist. Thereafter, Dr. Clifford Jones treated her for a couple of years and, more recently, Greg Fields, a clinical nurse specialist, at NewPoint was treating her. He observed that the mother had no prior psychiatric hospitalizations, no prior suicide attempts, and no history of hallucinations, delusions, or other psychotic features. She did have manic and depressive episodes and panic attacks.
Dr. Rissmiller, however, noted she had "a pervasive pattern of instability of interpersonal relationship, unstable self-image, marked impulsivity, efforts to avoid abandonment, affective instability, chronic feelings of emptiness and inappropriate inten[se] anger" with twenty assaults. She began using cocaine when she was eighteen and discontinued its use when she was thirty, just before the child's birth.
At the time of the evaluation, the mother had prescriptions for Xanax, Depakote, Topamax, Effexor, and Trazodone. She had been treated in the past with Serzone, Wellbutrin, Paxil, Zoloft, Prozac, Seroquel, and Neurontin. Dr. Rissmiller also found that the mother had bipolar disorder, generalized anxiety disorder, and borderline personality disorder. He recommended the mother continue with the Depakote and Trazodone but recommended changes to the Topamax, Xanax, and Effexor.
The judge signed an order on May 31, 2005, keeping the child in foster care, granting weekly supervised visitation, and requiring that the mother comply with the recommendations in her psychiatric evaluation. After continually feeling ill, the mother went to a hospital on June 2 and thereafter reported a problem had been diagnosed with her kidney, she had been admitted to the hospital, and was being given antibiotics. She was discharged on June 6, 2005. ARC continued to monitor the mother's progress during June, reporting she seemed better but was having some problems because her cousin was now paying only half of her rent; she lost TANF because her child was in foster care; she was having trouble getting her prescriptions refilled; and her efforts to secure at least part-time employment were ...