On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-203-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Baxter.
K.L. appeals from the April 3, 2009 order terminating her custodial rights to two girls, E.A.S. (born March 1, 1998) and M.M.S. (born December 15, 2001). K.L. is not a relative of these children, but is a friend of their biological mother and the godmother of E.A.S. The order appealed from was entered in a guardianship action in which the parental rights of the mother, who defaulted, were terminated as to both children. The order also terminated the parental rights of the unknown father or fathers.
Appellant had obtained custody of E.A.S. in 1998, when E.A.S. was two or three months old. She obtained custody of M.M.S. on April 1, 2003, when M.M.S. was about one-and-one-half years old. A legal custody order in her favor was entered on November 6, 2003. However, her custodial status ended on May 15, 2006, when the Division of Youth and Family Services (DYFS or Division) obtained legal custody and placed the children in foster care because of substantiated neglect by appellant. When the guardianship proceeding was ultimately commenced, appellant was included as a defendant. She was represented by counsel throughout the proceedings.
The judge ultimately decided that, based upon the evidence presented at a multi-day hearing, the best interest of these children would not be served by returning them to appellant's custody. The ultimate determination in the proceedings was that guardianship was awarded to the Division with a permanency plan of select home adoption. The Law Guardian joined the Division in the trial court in requesting that appellant's custodial rights should be terminated, and again joins with the Division on appeal in urging us to affirm the trial court decision.
Appellant argues that the judge's findings of fact and conclusions of law were inadequately stated, in violation of Rule 1:7-4(a). She also argues that the four-prong best interest test of N.J.S.A. 30:4C-15.1a, applicable to termination of parental rights, should have been applied with respect to her, and that the Division did not satisfy its burden under that test. Finally, she argues that the statutory disqualification of N.J.S.A. 30:4C-26.8d(3), which precludes her from being a resource parent or adopting the children because of a prior conviction for third-degree aggravated assault, should not have been applied to her. For the first time on appeal, she raises several equitable arguments to avoid the applicability of this statutory disqualification, including estoppel, waiver, and laches. We reject appellant's arguments and affirm.
The Division's involvement with the family of the two children involved in this appeal began in 1993, before either of them were born. Their biological mother, S.R.R., has a total of six children. S.R.R. had a long history of illegal drug involvement. Some of the referrals to DYFS resulted in substantiation of abuse or neglect by S.R.R., and the Division provided services for her.
In 1998, S.R.R. gave physical custody of E.A.S. to appellant. On April 1, 2003, S.R.R., expecting that her home was going to be the subject of a drug raid, gave appellant custody of two of her children, M.M.S. and her brother, O.S. S.R.R. later retrieved O.S., but left M.M.S. in appellant's custody. This custodial arrangement continued for a number of years thereafter.
Appellant sought services from the Division in 2003. A background check revealed that appellant had been convicted in 1995 of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5. Notwithstanding these convictions, the Division requested a waiver of the statutory disqualification, which was signed by a caseworker, but never approved by Division supervisory personnel. On November 6, 2003, with S.R.R.'s consent, an order was entered transferring legal custody of the two girls from S.R.R. to appellant.
On April 28, 2004, the Division received its first referral regarding appellant, alleging that she was under the influence of alcohol when she took E.A.S. to the dentist. The allegation was not substantiated. A second referral was received on February 9, 2006, alleging that E.A.S. was not being picked up on time from an after school program, and that the various individuals who picked her up smelled like alcohol. This allegation was also unsubstantiated. Indeed, during this timeframe, Division reports revealed that the children were well cared for and in good health, and on February 8, 2006, the Division concluded that the case should have been closed.
On May 11, 2006, appellant was injured when she fell down stairs as a result of her extreme intoxication. Appellant was taken to the hospital by her two nineteen-year-old children and E.A.S. Blood testing revealed a .323% blood alcohol content. Appellant's children left, and no one could be found to care for E.A.S., as a result of which hospital staff notified DYFS. Neglect was substantiated, and both girls were removed from appellant's custody. They were placed with relatives of appellant. Appellant was referred to a drug and alcohol evaluation. On May 15, 2006, the Division initiated an action for appointment of a law guardian. Appellant's relatives were not able to continue providing care for the girls. The Division placed them in foster care.
On June 14, 2006, appellant completed a case plan with the Division requiring her to complete a drug and alcohol evaluation and abide by its findings, as well to undergo a psychological evaluation. Visitation was included in the plan, and reunification of the girls with appellant was under court consideration.
Appellant began a rehabilitation program at St. Michael's Medical Center on June 15, 2006. She tested positive for marijuana on three occasions in June and July 2006. The odor of alcohol was detected on her breath on July 11, 2006, and appellant admitted she began drinking at 9:00 a.m. Subsequent urine screens in November and December 2006 were negative.
Dr. Mark Singer, a psychologist, evaluated appellant on September 18, 2006. He concluded that appellant minimized her alcohol abuse issues and found significant alcohol abuse and dependency issues. He also concluded that appellant had an immature understanding of appropriate child discipline and that her psychological disposition limited her ability to address the needs of others. In his view, if the children were "placed back into the home without these factors being addressed, there would be a significant risk that the events that brought about [the Division's] involvement would reoccur." He recommended that appellant participate in individual psychotherapy, maintain appropriate housing and obtain appropriate employment, and complete the substance abuse treatment program and a parenting skills program. He also recommended continued supervised visitation and that the children participate in a psychological evaluation. He did not recommend reunification at that time.
The Division approved a family counseling program at St. Michael's on September 26, 2006. On December 12, 2006, appellant completed parenting classes with the "Strengthening Families Program." Throughout the latter half of 2006, appellant's visitation with the children went well.
However, an unfavorable visitation incident occurred on December 29, 2006. Appellant arrived for the visit at Tri-City, which was overseeing visitation, and exhibited red eyes and slurred speech. When she was told the visit had to be cancelled, she became very angry and abusive, using profane language with the Tri-City staff. The visitation was allowed to proceed, and appellant continued using profanity. She attempted to induce the children to complain about their foster home, but the children informed her that there was nothing wrong in the home. Eventually, E.A.S. began to cry. Appellant left the visitation about one-half hour early after it failed to go her way. DYFS recommended that visitation be cancelled until a meeting could take place with appellant to discuss this incident. Appellant was referred to anger management counseling, and she completed the program on July 28, 2007.
The Division arranged for another psychological evaluation of appellant with Dr. Minerva C. Gabriel on February 14, 2007. Dr. Gabriel noted that appellant had good reality testing, did not exhibit evidence of a thinking disorder or other psychiatric condition, and was pleasant and cooperative. However, appellant acknowledged her continued use of alcohol, despite her participation in Alcoholics Anonymous meetings through St. Michael's. Dr. Gabriel concluded that appellant had problems with impulse control and anger and recommended continuation of her alcohol abuse program at St. Michael's. Dr. Gabriel further recommended further parenting skills training, individual psychological counseling, random substance screenings, and completion of her anger management training. She also recommended continued supervised visitation, but did not recommend reunification. Finally, she recommended a six-month reevaluation before custody of the children should be further considered.
On March 2, 2007, another unfavorable visitation incident occurred. Appellant arrived forty minutes late at Tri-City. When informed that because of her lateness the children would not be transported to the visit, appellant became angry and began using profanity. In response, Tri-City terminated appellant's visitation privileges that day.
As a result of this incident, appellant was referred for a psychiatric evaluation by Dr. Ronald Crampton, M.D., which took place on April 11, 2007. She acknowledged her continuing regular consumption of alcohol. Dr. Crampton diagnosed appellant with a mood disorder, depressive disorder, anxiety disorder, and alcohol dependence with physiological dependence. He recommended referral for further psychiatric assessment and treatment through appellant's primary physician and continuing substance abuse interventions. He opined that reunification with the children was not appropriate ...