On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FG-07-206-06 and FG-07-56-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2010
Before Judges Fisher, Sapp-Peterson and Espinosa.
Defendant A.H. appeals from a March 11, 2009 Family Part order terminating parental rights to her then four-year-old son A.S.,*fn1 born to A.H. and O.S., Jr. on November 13, 2003,*fn2 and granting guardianship to the Division of Youth and Family Services (Division). We affirm.
On September 12, 2007, the Division filed a verified complaint for guardianship seeking termination of A.H.'s parental rights to A.S. Trial commenced on November 6, 2008, and proceeded over seven non-consecutive days before its conclusion on February 24, 2009. The Division's caseworker, Patrice Amatrudi (Amatrudi); Dr. Elayne Insler Weitz, an expert in psychology; Dr. George Jackson, an expert in toxicology; Anne Claridge, a social worker with an expertise in play therapy; A.S.'s maternal grandmother, S.H.; and A.S.'s paternal grandfather, O.S., Sr., testified on behalf of the Division.
The defense presented A.H. and three expert witnesses: Dr. Edward Aronow, a psychologist; Dr. Michael Fester, an expert in alcohol studies; and Dr. Bal Krishena, a toxicologist. S.H. also testified on behalf of the defense. Additionally, in excess of fifty-eight exhibits were marked into evidence.
The record disclosed that the Division's first involvement with A.H. occurred in September 2005 when it received a referral reporting that A.H. and A.S. were living with A.H.'s mother, S.H., and that A.H. was abusing drugs. A.S. was almost two years old at the time. The Division responded to the referral and first interviewed S.H., who told the caseworker that A.H. recently returned to New Jersey with A.S. and had nothing but the clothes on her back. She acknowledged that A.H. had a prior history of substance abuse but had not observed any abuse of drugs while A.H. had been living with her. A.H. arrived during the interview and accused her mother of contacting the Division. A.H. indicated that she had constant relationship problems with O.S., Jr., and therefore returned to New Jersey. She indicated that she was employed and looking for an apartment. The Division found that the allegations were unsubstantiated, but opened a case for supervision and services.
On October 6, 2005, the Division received a referral from the Fairfield Police Department. According to police, they were dispatched to a domestic violence dispute that occurred at a hotel bar between A.H. and her boyfriend, M.M., earlier that evening. When they arrived, they went to one of the hotel rooms where they found A.H., who appeared to be intoxicated, and at that time they also observed A.S. When police questioned A.H. as to what she had done with A.S. while she was at the hotel bar, she claimed that her mother had been watching A.S. She refused to give the police her mother's telephone number or address so they could confirm what she had told them. Ultimately, they were able to contact S.H., who denied she had been caring for A.S. that evening. A caseworker immediately responded to the referral and interviewed A.H., whose speech was slurred. A.H. repeatedly asked the caseworker the same questions. The caseworker removed A.S. from the hotel and placed him with S.H.
Following this emergency removal, the Division filed a verified complaint and order to show cause on October 11, petitioning the court to grant the Division temporary custody of A.S. and to appoint a law guardian on A.S.'s behalf. On October 25, the return date of the Division's order to show cause, the court returned A.S. to A.H.'s physical custody. The Division represented to the court that because A.H.'s boyfriend no longer lived with A.H., the Division was satisfied that there was no further risk to A.S.
Two months later, as part of the services being provided to A.H., she underwent a psychological evaluation conducted by Dr. Mark Singer. During the evaluation, A.H. acknowledged her history of substance abuse but indicated that she had not used any drugs for the last ten years. She reported that she was in contact with O.S., Jr., but had no relationship with him because he was not helping her. She did acknowledge her relationship with M.M., and denied that any domestic violence had occurred as previously reported to the police and the Division.
In addition to the clinical interview, Dr. Singer conducted a mental status examination and performed personality testing. He concluded that A.H. was anxious, in need of support to achieve her goals, minimized her personal faults, had unrealistic perceptions of her own level of psychological functions, was experiencing difficulty responding to the needs of others, and had the propensity to engage in "dramatic behavior displays in order to win the approval and affection of others and likely experienced a conduct disorder during childhood/adolescence."
Dr. Singer recommended that A.H. maintain appropriate housing and employment, participate in individual psychotherapy, and be subjected to continued drug screening. Dr. Singer also recommended that the Division should ensure that M.M. posed no risk to A.S. and that "[i]f needed," the Division should facilitate a psychiatric referral "in order to address anxiety medically as an adjunct treatment modality."
In response to Dr. Singer's recommendations, the Division arranged for weekly therapy sessions with Dr. Barry Katz, a clinical psychologist. A.H. commenced her therapy sessions with Dr. Katz in January 2006. Three months later, A.H. also separately participated in anger management. A.H. reported at that time that she was no longer living with M.M. The caseworker told A.H. that if this representation was confirmed and she was otherwise compliant with her treatment, it would seek dismissal of the matter. The Division, however, received another referral in May 2006 alleging that A.H. was using drugs and that neighbors regularly heard A.H. and her boyfriend screaming, cursing and yelling at each other. The caseworker met with A.H. A.H. indicated that M.M. had moved out of the apartment three weeks earlier. A.H. denied any substance abuse and stated that because she had already completed an assessment, she did not wish to undergo another assessment. She did offer to complete a urine screen. She also signed a case plan agreeing to provide A.S. with a drug-free and safe environment.
At a June 20, 2006 court appearance, A.H. tested positive for opiates. The court ordered A.H. to continue with her therapy sessions, cooperate with law enforcement authorities in their investigation of the criminal matter stemming from the October 2005 hotel bar incident, attend all court proceedings in connection with that matter, and to explain to the court her positive drug test results at the next compliance review scheduled for July 25.
On July 19, the caseworker had a telephonic interview with the superintendent of A.H.'s apartment building. The superintendent indicated that she lived in the basement of the same building as A.H. and that both A.H. and M.M. were listed as the tenants on the apartment lease. The superintendent also reported that the neighbors living next-door to A.H. and M.M. reported hearing fighting and smelling drugs emanating from the apartment. On that same day, the caseworker made an unannounced visit to the apartment. A.H. denied that M.M. was living with her, but M.M. arrived at the apartment during the caseworker's visit. M.M. also denied living with A.H. When A.S. entered the room where A.H., M.M., and the caseworker were gathered, M.M. asked A.S., "who am I?" A.S. responded, "daddy." The caseworker advised M.M. that if he intended to remain in A.S.'s life, he was required to participate in the domestic violence classes and other services offered by the Division. M.M. told the caseworker that he would not take domestic violence classes with A.H. because he did not believe the classes pertained to him. The caseworker also spoke with A.H.'s anger management counselor who conducted counseling sessions with A.H. at the apartment. The counselor reported that these sessions were conducted in the morning and that he observed M.M. in the apartment during some of those counseling sessions.
On July 25, 2006, the Division filed an amended order to show cause and verified complaint seeking the appointment of a law guardian on behalf of A.S. and the grant of temporary custody of A.S. to the Division. The court entered an order on that same date declaring that A.S. was a ward of the court, appointing a law guardian, and placing A.S. in the immediate care, custody and supervision of the Division. A.S. was placed back into the physical custody of his maternal grandmother, S.H., but removed from her care the following month and placed in foster care because S.H. was unable to present documentation from her superintendent that A.S. could reside in her apartment.
Meanwhile, A.H. had contacted the Division on August 2, reporting that M.M. had locked her out of their apartment and the superintendent refused to give her another set of keys. The caseworker encouraged A.H. to seek assistance from the police and to also contact welfare officials in an effort to secure temporary rental assistance. A.H. expressed a willingness to do whatever was necessary to regain custody of A.S. but blamed the Division for his placement in foster care. She continued with her counseling sessions and regularly visited with A.S. in accordance with the visitation plan. However, on December 11, Bloomfield police contacted the Division to report that A.H. had been arrested and was at the police station with A.S., with whom she was apparently having an unsupervised visit on that day. The caseworker interviewed A.H. at the police station. A.H. denied breaking into the apartment where police found her, A.S., and another male, M.C. A.H. explained that she had been invited into the apartment by her friend, M.C.
Over the next several months, A.H. continued her regular visits with A.S., underwent a drug assessment at the Division's request in April at the COPE Center (COPE)*fn3 in Montclair, and commenced her participation in the COPE substance abuse program. Although her first three drug screens were negative, COPE reported that A.H.'s creatinine levels were low, which suggested "possible specimen adulteration." A.H. attended Alcoholics Anonymous and participated in two-hour weekly in-home counseling sessions that had been arranged by the Division. Her drug screens continued to be negative.
On July 10, 2007, just before a court hearing commenced, A.H. underwent a drug screen at the Division's request. Because the drug screener described A.H.'s urine as "clear as water," the screener suspected that the specimen had been altered. When confronted with this accusation, A.H. admitted that she had relapsed and had used cocaine. The Division advised the court that it would seek termination of parental rights. On September 12, 2007, the Division filed a complaint for guardianship.
In January 2008, after receiving confirmation that A.S.'s paternal grandparents' home was licensed and approved for placement, the Division placed A.S. with them. A.H. had telephonic contact with A.S. and two visitations with A.S. when he was returned to New Jersey for the visits.
On August 27, A.H. was admitted to Turning Point, Inc. (Turning Point), an in-patient treatment facility. She admitted, during her intake interview, that she had a lengthy history of substance abuse. Contrary to her earlier representations to the Division and to the court that she had been drug-free for years, she admitted, during this interview, that her last period of abstinence was for sixteen months between 2003 and 2004. For the first time, A.H. was diagnosed with bipolar disorder and prescribed Depakote.*fn4 She was also treated for her substance abuse dependency. Additionally, A.H. received individual counseling and also training in parenting skills. Upon her discharge from Turning Point in October, A.H. resumed her out-patient treatment at COPE where she received both substance abuse counseling as well as treatment for her mental health issues.
On March 6, 2008, A.H. underwent a psychological evaluation with Dr. Elayne Weitz. Dr. Weitz conducted a clinical interview, performed psychological testing and consulted with A.H.'s caseworker, Patrice Amatrudi, an experienced Division caseworker who took over A.H.'s file in July 2007. In summarizing her findings, Dr. Weitz found that A.H. had strengths and weaknesses and expressed her concerns related to A.H.'s "personality" and "behavioral traits." In her report, she stated:
Seven months of recovery is a short time compared to the 10 plus years [A.H.] abused various substances. On the positive side, she has already shown that she can maintain a stable lifestyle while she is working on her recovery. The added stress of caring for her child could be overwhelming at this stage in her rehabilitation process. Though [A.H.] would probably say that [A.S.]'s presence will help her stay sober, I believe the Division should move slowly and cautiously with returning [A.S.] to her care. I often recommend that individuals demonstrate a year of sobriety while living independently before they are reunited with their child.
Dr. Weitz offered a number of other recommendations which she believed would ensure successful reunification, including continued substance abuse counseling, regular consultation with a psychiatrist to monitor the effectiveness of her medications, and "[i]ndividual psychotherapy [which] would provide additional support and help [A.H.] balance work and home schedules effectively." She also recommended that any reunification should "allow for the gradual placement of [A.S.] with [A.H.]"
Throughout the spring and early summer of 2008, A.H. continued to participate in COPE, and all of her drug screens were negative. She also remained in treatment with a psychiatrist at COPE, Dr. Esha Khoshnu, who had been treating her since October 2007. In an April 21 letter to Amatrudi, Dr. Khoshnu wrote, "I consider her prognosis to be guarded as any patient with the [Bipolar Disorder and Cocaine and Heroin Dependence] diagnosis may relapse."
After receiving a telephone call from A.S.'s law guardian on April 16, reporting she had information that A.H. was submitting someone else's urine for her drug screens, Amatrudi confronted A.H. with the allegation and requested that A.H. undergo a drug screen. A.H. indicated that she was unable to do so because of her work schedule. The Division then arranged for the drug screen to be conducted by COPE after A.H. finished work. Amatrudi called A.H. to explain the arrangements for her drug testing and advised A.H. that if she failed to appear for the drug screen, the Division would assume that her test results would have been positive for drugs. A.H. did not appear for the first appointment scheduled by COPE but did submit to a urine screening on July 14, which was positive for opiates. A.H. disputed the results and indicated that she had undergone foot surgery and the medication she was taking post surgery caused the positive result. Amatrudi told A.H. that the positive drug screen would impact the direction of the case and requested that A.H. provide proof that she had been prescribed medication for her foot.
A.H. did not supply the requested prescriptions to the Division at that time. She stopped attending COPE and failed to maintain contact with Amatrudi despite the caseworker's attempts to reach her by telephone and personal contact. A September 2, 2008 letter from COPE reported that A.H. had not been in attendance at the program since July 14. When A.H. finally contacted the Division two months later, she attributed her failure to contact the Division to her recent foot surgery. She never provided documentation to the Division of her foot surgery.
Bonding evaluations with A.H., the paternal grandparents and A.S. were conducted on behalf of the Division by Dr. Weitz, while bonding evaluations of A.H. and A.S. on behalf of the defense were conducted by Dr. Edward Aronow. Both doctors found that A.H. was incapable of providing appropriate care of A.S. at that time. Dr. Aronow opined that it was "unlikely that [A.H.] would be able to put her life together to an acceptable degree in the absence of full and serious treatment of her Bipolar Disorder." He believed that the period of time A.H. needed to address the issues impeding her ability to provide a safe and stable environment for A.S. would take approximately one year because she could not resume taking Depakote for six months due to pregnancy and would need another six months thereafter to be monitored with the increased dosage that A.H. stated her psychologist was recommending.
Both doctors also recognized a strong bond between A.S. and A.H. as well as a bond between A.S. and his paternal grandparents. Dr. Weitz testified that in her opinion, A.H. could not provide a safe and stable environment for A.S. because of her failed substance abuse rehabilitation, unresolved bipolarity, employment instability, impulsivity, manic behavior and problems with her mother. Dr. Aronow recommended that if A.S. remained in Florida with his paternal grandparents, ...