On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-39-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2009
Before Judges Cuff and Payne.
In these consolidated matters, J.N.H., the mother of minor children D.N.F.H., J.M.W. and B.Y.W., and W.F.W., the father of J.M.W. and B.Y.W., appeal from the termination of their parental rights by order dated January 9, 2009. We affirm, determining that entry of the termination order was in the best interests of the three children.
The record reflects that D.N.F.H. was born in the Summer of 2004 and was four years old at the time of trial. The identity of her father is not known. Daughters J.M.W. and B.Y.W. were born in the Spring of 2005 and the Fall of 2006, respectively.
W.F.W., born in 1968, is drug-addicted and has a significant criminal history commencing in 1986, consisting of seven felony convictions, two violations of probation, two parole violations and multiple municipal convictions. In general, the convictions were related to drug possession, burglary and theft, and hindering apprehension. However, W.F.W. was sentenced in 1994 to ten years of imprisonment for first-degree robbery, and he has one additional conviction for a violent crime. When giving testimony on the eighth day of trial, held on October 28, 2008, W.F.W. had recently been released from nineteen months of custody in state prison for violation of probation. On October 28, he was being held in jail for contempt of court, having failed to pay $500 in fines.
J.N.H. likewise is drug-addicted and has a lengthy criminal history commencing in 2001 when she was twenty years old. Records indicate that she has seven felony convictions, including drug offenses and receipt of stolen property, one violation of probation, and several municipal convictions, most of which were drug-related.
Following the birth of D.N.F.H. in 2004, J.N.H. and the baby were reported to the Division of Youth and Family Services (DYFS) as testing positive for cocaine and marijuana. On July 16, 2004, DYFS filed a verified complaint and order to show cause against J.N.H. and the baby's alleged father seeking custody of the child. Custody was granted, and D.N.F.H. was placed in her first foster home, where she remained for approximately one year. On February 18, 2005, the court ordered that physical custody of D.N.F.H. be transferred to her maternal grandmother as soon as all requested items and services were in place. The new placement had been accomplished on March 7, 2005.
In May 2005, DYFS was notified that J.N.H. had given birth to J.M.W. and that W.F.W., the child's father, was incarcerated in the Somerset County jail. DYFS amended its complaint to seek custody of this child, as well. Although legal custody was granted to it, the court ordered that physical custody remain with J.N.H. while she underwent drug treatment at Straight and Narrow. On May 25, 2005, physical custody of D.N.F.H. was also transferred to J.N.H. The plan was for J.N.H. and the two children to move in with D.N.F.H.'s alleged father following treatment. However, J.N.H. eventually moved out of that residence to pursue a family relationship with W.F.W.
On March 20, 2006, DYFS received a referral that D.N.F.H. and J.M.W. had been left at home without adequate supervision. The charge was substantiated by DYFS following an investigation that disclosed that the children had been left in a locked bedroom. Following substantiation of the charges, the two girls were removed and placed in emergency foster care.
In September 2006, DYFS received a referral that J.N.H. had given birth to B.Y.W., that J.N.H. had tested positive for opiates, and that tests of the baby were pending. The tests were later disclosed to be positive. DYFS sought and obtained custody of the child.
In late September 2006, the maternal grandmother offered herself as a resource relative for the two older girls on the condition that DYFS supply daycare, furniture, clothing, Medicaid cards, WIC cards,*fn1 daily schedules, and monetary disbursements. The two girls were placed with their maternal grandmother in November 2006. However, on December 21, 2006, the grandmother refused to give DYFS access to the children, claiming that her needs were not being addressed.
On January 25, 2007, W.F.W., who had previously been incarcerated, offered himself as a caretaker for J.M.W. and B.Y.W. However, W.F.W. tested positive for cocaine and opiates on January 29, 2007 and was incarcerated again on that and other charges from March 2007 until the end of trial in November 2008.
On February 21, 2007, the maternal grandmother requested that the two older girls be removed from relative home care and transferred to foster care. As a result, in March 2007, the two girls were transferred to the foster home in which they remained at the time of trial. The transfer constituted D.N.F.H.'s sixth change in caretakers and J.M.W.'s third. D.N.F.H. has been diagnosed as suffering from ADHD and Reactive Attachment Disorder (RAD) of the disinhibited type. RAD has been described in the following terms:
The essential feature of [RAD] is markedly disturbed and developmentally inappropriate social relatedness in most contexts that begins before age 5 years and is associated with grossly pathological care.... In the Disinhibited Type, there is a pattern of diffuse attachments. The child exhibits indiscriminate sociability or a lack of selectivity in the choice of attachment figures.... The condition is associated with grossly pathological care that may take the form of persistent disregard of the child's basic emotional needs for comfort, stimulation, and affection... persistent disregard of the child's basic physical needs... or repeated changes of primary caregiver that prevent formation of stable attachments.
[American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 116 (4th ed. 1994).]
On March 9, 2007, B.Y.W. was transferred to the home of a family friend, but was transferred to another foster home in June 2007 after falling from her bed and breaking her femur. B.Y.W. remained in that placement at the time of trial.
In February and March 2007, DYFS ruled out placing the children with other relatives as the result of their positive drug tests and DYFS's concerns regarding child safety. On April 19, 2007, J.N.H. was incarcerated after missing appointments with her parole officer. She was paroled in December 2007. On May 14, 2007, ...