On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, No. FG-12-64-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2009
Before Judges Wefing, Grall and LeWinn.
K.S. appeals from a trial court judgment terminating her parental rights to her daughter A.N.S., now four years of age. After reviewing the record in light of the contentions advanced on appeal, we affirm.
A.N.S., born in November 2005, is defendant's seventh child. K.S. does not have the care or custody of any of her other six children. Her parental rights to three of these six children have been terminated, and they have been adopted; another child is in the custody of her father; and two are in the custody of their paternal grandmother. The father of A.N.S. is unknown.
At the time A.N.S. was born, K.S. was in a residential drug treatment program, Epiphany House, for her long-standing drug problem. When K.S. learned that she was pregnant with A.N.S., she was incarcerated at the Middlesex County Jail and was transferred to this residential program. The circumstances of this transfer are not entirely clear from the record before us. We note that neither K.S. nor A.N.S. tested positive for narcotics at the baby's birth. The New Jersey Division of Youth and Family Services ("DYFS") was contacted in light of K.S.'s past history, and a case worker responded to the hospital. Based upon K.S.'s expressed desire to overcome her past problems and willingness to continue in her treatment program, upon her discharge, she was permitted to return to the residential program with A.N.S. DYFS told her it would keep the case open.
Some six months later, in May 2006, DYFS was again contacted when K.S. did not pick up A.N.S. from daycare. Although K.S. told the DYFS worker who investigated the report that she had become lost while returning from Freehold, her counselor at Epiphany House told the DYFS worker that K.S. was being terminated from the program because of her failure to comply with the rules and leaving when she was not authorized to do so. K.S. then enrolled in an out-patient drug program in New Brunswick and, with A.N.S., resided with a close friend, C.M. In July, K.S. was arrested for possession of cocaine and marijuana.
DYFS then learned that K.S. had given custody of A.N.S. to C.M. C.M. said she was willing to care for A.N.S. but needed assistance. K.S. told the DYFS worker that she knew that she could not care for A.N.S. at that time and was willing to give temporary custody to C.M.
DYFS filed a complaint alleging abuse and neglect under Title 9 in October 2006. In connection with that action, DYFS arranged for Chester E. Sigafoos, Ph.D. to conduct a psychological evaluation of K.S. in January 2007. Following that evaluation, Dr. Sigafoos issued a comprehensive twenty-six-page report. During the evaluation, K.S. told Dr. Sigafoos that her mother was a drug addict, and she never knew her father.
She lived with her grandparents for several years but ran away at the age of twelve because of the physical abuse she received. She did not go to school past the eighth grade. She started abusing drugs at the age of fourteen and engaged in prostitution to support her habit. She had been diagnosed with bipolar disorder. She was arrested six times as a juvenile and six times as an adult and had had several periods of incarceration.
Dr. Sigafoos administered a series of psychological tests. He reported that he found K.S. to be in the mildly retarded range of intellectual functioning and to have severe psychological problems. He concluded that she was "very disturbed," that her prognosis was "poor" and that she was unable to parent her children.
The following month, in February 2007, K.S. was again arrested. In March she entered guilty pleas to charges of possession of a controlled dangerous substance with intent to distribute and possession of a controlled dangerous substance with intent to distribute within one thousand feet of school property. She was sentenced to an aggregate term of seven years in prison. K.S. was in prison at the time of this trial and remains in prison to date. The earliest date at which she will be eligible for parole is not until August 2010.
In July 2007, physical custody of A.N.S. was transferred from C.M. to K.S.'s aunt T.S. This shift, which was satisfactory to K.S., was spurred in part by concerns that C.M.'s husband, who had just been released from prison, was living in the home.
There was conflicting evidence whether T.S. was meeting all of A.N.S.'s medical needs. A.N.S. had delays in her speech development, she had difficulty walking because her Achilles tendons were shortened and, although only two years old, was significantly obese. A.N.S. remained with T.S. until February 2008 when DYFS removed A.N.S. because T.S. suffered from depression and, having herself been arrested on drug charges, could not be approved for placement. A.N.S. was placed with a foster family, the G.s, where she has since remained.
Since living with the G.s, A.N.S. has lost a significant amount of weight and made progress with her speech. In addition, she received a series of casts on her feet to lengthen her tendons. By the time of trial, she was able wear normal shoes and walk more normally.
Despite K.S.'s incarceration, DYFS arranged for monthly visits between K.S. and A.N.S. A DYFS worker would transport A.N.S. to visit K.S. in prison. Both appeared happy to see each other, and A.N.S. would appear distressed at a visit's end.
K.S. told the DYFS worker that she did not want to lose A.N.S., as she had lost her other children. She said her relationship with A.N.S. was different than her relationship with her other children because she had been able to take A.N.S. home ...