On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-97-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2009
Before Judges Graves, Sabatino and Lyons.
After a guardianship trial, the Family Part terminated the parental rights of defendant G.R., the biological mother of A.R.C. Defendant now appeals, and we affirm.
The following facts in the record are pertinent to our consideration of the issues raised on appeal.
A.R.C. was born addicted to methadone in April 2005, while his mother, defendant G.R., a forty-seven-year-old female, was incarcerated at South Kearny Correctional Facility. The baby was born at forty weeks gestation, weighing six pounds, eleven ounces. A Jersey City Medical Center staff member called the Division of Youth and Family Services ("DYFS" or the "Division") on April 18, 2005, to report that A.R.C. had tested positive for methadone at birth. Defendant disputes whether A.R.C. was suffering any withdrawal symptoms, although a DYFS caseworker testified that the infant was hospitalized for several weeks after his birth due to addiction.
Defendant has a history of substance abuse that spans more than twenty-six years. She had been incarcerated since February 2005, for a violation of probation after testing positive for heroin.
Defendant is a widow. She is a graduate of St. Peter's College, where she met her first husband while studying Psychology and Urban Studies.
Defendant has had a traumatic life. Her father died in an automobile accident while driving her mother to the hospital for her birth. This tragic incident caused defendant's mother to be depressed and angry for many years, and defendant felt blamed for her father's death. Defendant also reported that she had been raped as a young woman by a group of men coming home from work one night. These events, coupled with defendant's financial difficulties, evidently contributed to her use of illegal substances, including marijuana, cocaine, and heroin. In addition, defendant has several arrests and convictions for solicitation arising out of her drug dependency.
While she was an inmate at the Hudson County Jail in the spring of 2005, defendant enrolled in a methadone program. She also was added to a wait list for the Straight and Narrow program. Defendant had been previously enrolled in MASSH (Jersey City Medical Center's detoxification program) and St. Lucy's shelter drug program, but did not complete either of those courses of treatment.
Defendant admitted to using drugs during three of her four pregnancies. All three children, including A.R.C., tested positive for controlled dangerous substances at birth. Between 1993 and 1998, DYFS received nine referrals reporting abuse or neglect of defendant's older children, only two of which were substantiated.
On April 26, 2005, the Division filed an Order to Show Cause and Verified Complaint seeking the custody of A.R.C. The application was filed against defendant and N.C., who has been defendant's paramour for approximately seventeen years and was identified as the potential father of the child. The Division alleged that both parents had failed to exercise a minimum degree of care toward A.R.C. That same day, the Family Part ordered the transfer of legal custody of A.R.C. from defendant to the Division. The court also transferred physical custody of A.R.C. to the Division while the boy remained hospitalized. The court further ordered the Division to arrange a psychological evaluation of N.C., and to consider him as a potential placement resource for the child.
Gerard A. Figurelli, Ph.D., a licensed psychologist, examined N.C. at the Division's request on May 16, 2005. N.C. told Dr. Figurelli that he has cared for N.C., Jr., (his confirmed biological child with defendant) as well as defendant's older daughter, A.R. (then age seventeen) and her son, L.R. (then age fourteen), both from a different biological father.
N.C. reported to Dr. Figurelli that he had recently worked as a manual laborer and also had previously been self-employed as a contractor. He stated that he was receiving Medicaid and food stamps, as well as Social Security benefits on behalf of defendant's children. N.C. admitted to Dr. Figurelli that he had used drugs approximately ten years earlier and that he currently drank alcohol. These various factors led Dr. Figurelli to conclude that N.C. was not suitable to provide primary caretaking responsibility of the newborn boy.
Significantly, N.C. tested positive for marijuana in a drug test conducted the same day of his psychological evaluation with Dr. Figurelli. N.C. denied the validity of that drug screen. He also claimed that he did not have time to enter a drug treatment program due to his work schedule.
Dr. Figurelli characterized the relationship between N.C. and defendant as "enabling." He suggested that N.C. would benefit from counseling. Even so, a DYFS investigation of N.C.'s home did indicate that N.C. appeared to be taking "good care" of the three older children.
On May 11, 2005, defendant began in-patient treatment at the Straight and Narrow program. On May 20, 2005, the return date of the initial Order to Show Cause, the Family Part transferred physical custody of A.R.C. back to defendant. Thereafter, the child stayed with defendant in a residential substance abuse program. Defendant was described by the staff at that program as an active participant in therapy and attentive to her child's needs. However, the staff also observed her tendencies to become defensive during group therapy.
On August 16, 2005, defendant and N.C. appeared with counsel in the Family Part in the child neglect ("FN") litigation (Docket No. FN-09-418-05). On that day, the court dismissed N.C. from the case, based on paternity test results revealing that he was not A.R.C.'s biological father. N.C. nonetheless requested to be listed on A.R.C.'s birth certificate as the child's father, and the certificate was so amended. N.C.*fn1 repeatedly sought custody of A.R.C. throughout the FN matter, stating that he wanted the boy to be raised with his half-siblings.
After the Division indicated to the court that the identity of A.R.C.'s biological father was not known, the court waived service on the father. The court maintained legal custody with the Division, while the child remained in defendant's physical custody at the rehabilitation program.
Defendant waived her right to fact-finding on the neglect charges at a hearing on September 16, 2005, in which she was again represented by counsel. She stipulated through counsel that she had a $60 per day heroin habit during her pregnancy with A.R.C., up until February 2005, when she was arrested for violating her probation.
Defendant completed the program at Straight and Narrow on December 1, 2005. At the recommendation of her counselors, she moved into Project Home, a year-long partially-supervised transitional housing program for women and children who have been affected by substance abuse and domestic violence, which also offers weekly outpatient counseling. DYFS initially received favorable progress reports from the counselors at Project Home for several months. Defendant also submitted negative urine drug screens during her first eleven months in the program.
At a subsequent permanency hearing on April 21, 2006, the trial court accepted a plan, proposed by the Division, for A.R.C. to reunify with his mother. The court found that defendant appeared to have ...