On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-42-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Submitted: November 4, 2009
Before Judges Gilroy and Simonelli.
Defendants K.S., the biological mother of Jason,*fn1 born in June 2007, and S.B., the biological father, appeal the termination of their parental rights. Following a non-jury trial, Judge Critchley rendered a written decision and entered judgment in favor of plaintiff Division of Youth and Family Services (Division). On appeal, S.B. contends that the Division failed to establish all four prongs of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. K.S. only challenges the judge's findings on the second, third and fourth prongs. Both defendants also contend that the judge failed to consider kinship legal guardianship (KLG), N.J.S.A. 3B:12A-1 to -7, as an alternative to termination of parental rights. We affirm.
On April 16, 2007, the Division first became involved with K.S., a long-time drug abuser, after receiving a referral that she was abusing benzodiazepine (Xanax) while in outpatient treatment for methadone maintenance and benzodiazepine detoxification. K.S. was six months pregnant with Jason at the time and was attending the prenatal high risk clinic at Morristown Memorial Hospital (MMH). K.S. admitted to a Division caseworker that she had used heroin and cocaine in the past and was on probation for drug use; however, she denied presently using drugs, and only ingested the Xanax prescribed by her psychiatrist for severe depression and methadone.
On June 6, 2007, two days after Jason's birth, MMH notified the Division that Jason had tested positive for cocaine, opiates, methadone and benzodiazepines at birth, and was suffering from significant withdrawal symptoms. A Division caseworker interviewed K.S. and S.B. at MMH that day. K.S. admitted using cocaine the night before and using heroin a few months prior to Jason's birth. She identified S.B. as Jason's father and confirmed his awareness of her pregnancy.*fn2 K.S. later stipulated at a compliance hearing that she had tested positive for cocaine on the day of Jason's birth, thus substantiating abuse or neglect.
S.B. denied any drug use and indicated his willingness to care for Jason and be active in the child's life. He also indicated his and his family's desire to be a potential placement resource for the child. He did not deny being the child's biological father, and knowing of the pregnancy and K.S.'s drug use prior to the pregnancy.
Jason remained in the hospital for three months due to severe withdrawal symptoms and other medical complications resulting from his drug exposure in utero. He has been diagnosed as medically fragile, receives physical and occupational therapy and early intervention services to address his speech and other developmental delays, and had surgery on both eyes to correct a strabismus, or "lazy eye" condition. Upon discharge from the hospital, the Division placed Jason with his maternal grandmother, R.P., where he remains. R.P. wants to adopt Jason, and has expressed her intent to permit both parents to remain in the child's life.
K.S.'s history with the Division has been marked by continued drug abuse, including her addiction to Xanax, failed attempts at drug rehabilitation and at therapy to address her psychiatric problems,*fn3 lack of employment, and non-compliance with services the Division had offered her. Psychological evaluations reveal K.S.'s fair prognosis and likelihood of relapse.
Contrary to his denial to the Division's caseworker, S.B. was also a drug abuser. His history with the Division has also been marked by his continued drug abuse, failed attempts at drug rehabilitation and individual therapy, and non-compliance with services the Division had offered him.
Although knowing he was Jason's biological father, S.B. initially failed to respond to the Division's numerous attempts to contact him. A court-ordered psychological evaluation revealed that S.B. was ambivalent about his role as a father, did not have a long-term parenting plan for Jason, and could not assume responsibility for the child without significant support and guidance. Also, S.B. did not request visitation until October 4, 2007, and he did not complete the necessary intake to begin visitation until three months thereafter.
On August 21, 2007, S.B. was arrested for possession of marijuana and drug paraphernalia. He failed to comply with court-ordered substance abuse treatment and regularly tested positive for marijuana from December 2007 to April 2008.
On May 15, 2008, Judge Critchley approved the Division's plan of termination of parental rights followed by R.P.'s adoption of Jason. On July 16, 2008, the Division filed the guardianship complaint. In August 2008, S.B. finally began addressing his substance abuse; however, K.S. relapsed, testing positive for cocaine and heroin.
Because S.B. was progressing in drug treatment, in September 2008, the Division considered reunification. The plan was short-lived. By November 2008, S.B. was again non-compliant. He discontinued individual therapy, failed to communicate with the Division, and failed to plan for or consistently visit Jason.
The termination trial began on January 12, 2009. By that time, R.P. had been Jason's sole caretaker for nearly one-and-a-half years. There is no dispute that R.P. has provided Jason excellent and nurturing care, that the child has thrived in her care, and that he is bonded to her. There also is no dispute that Jason has a strong emotional attachment to his parents. However, the Division's expert psychologist, Alison Winston, Ph.D., opined that K.S.'s risk of relapse, failure to address her psychological problems, and her continued use of Xanax made her prognosis fair and her ability to safely parent Jason questionable. The doctor concluded that K.S. was not fit to parent Jason and could not become fit in the foreseeable future.
As to S.B., Dr. Winston emphasized that he had only been drug-free for nine months, and that ...