On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-0046-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Baxter and Alvarez.
In these two appeals, which we have consolidated for purposes of disposition, we decide whether the Family Part correctly terminated S.A.'s parental rights to her daughter C.B., born June 29, 2007, while at the same time refusing to terminate S.A.'s parental rights to her other daughter, K.C., born November 18, 2008. We conclude that the proofs presented by the Division of Youth and Family Services (DYFS or Division) satisfied all four prongs of the applicable statutory standard, N.J.S.A. 30:4C-15.1(a), and therefore affirm the termination of S.A.'s parental rights to C.B. However, because the proofs as to K.C. were virtually identical to those concerning C.B., the judge misapplied the statute when he refused to terminate S.A.'s parental rights to K.C. and chose instead to afford S.A. one more opportunity, through Drug Court, to become drug-free. We thus affirm the judgment in A-5626-08 and reverse the judgment in A-5244-08.
The two children who are the subject of this appeal are S.A.'s fourth and fifth offspring. To provide a more complete picture of S.A.'s history of drug abuse and her incarceration for addiction-related crimes, we begin our review with a discussion of S.A.'s loss of custody of her three older children. We will refer to them by pseudonyms.
S.A.'s oldest child, Karen, was born on December 24, 1999. DYFS became involved with S.A. after receiving a referral alleging that S.A. was abusing drugs. After admitting to heroin use, S.A. entered an inpatient drug treatment program, but never completed it. DYFS closed the case after S.A. executed a permanent surrender of her parental rights in favor of her parents.
On November 2, 2001, S.A. was convicted of eight counts of burglary, theft, use of a stolen credit card and a violation of probation, for which she was sentenced to an aggregate four-year term of imprisonment. On February 7, 2002, the judge modified S.A.'s sentence by releasing S.A. from prison and placing her on probation for a four-year period.
S.A. gave birth to her second child, Missy, on January 2, 2002 while incarcerated on the charges we have just described. Because S.A. was incarcerated, at S.A.'s request Missy was placed with S.A.'s parents. Upon her release from custody in June 2002, S.A. attempted to regain custody of Karen from her parents, but was not successful. Later, S.A.'s parents allowed her to live with them, Missy and Karen. By then, S.A.'s parents had adopted Karen. On May 9, 2003, S.A. was convicted of forgery and sentenced to a two-year term of probation. In her statement of reasons, the sentencing judge noted that the charges in question resulted from S.A.'s "financial need to deal with drug use."
Five months later, on September 30, 2003, S.A. gave birth to her third child, a son, Corey. After several moves during and after her pregnancy, S.A. and Corey's father moved in with friends and S.A. again began using heroin. While arresting Corey's father, police observed recent needle marks on S.A.'s arm, which police believed were the result of heroin use. Because S.A. admitted using heroin, and because the two placement resources she offered each had prior DYFS involvement, DYFS executed an emergency removal of Corey, and both Corey and Missy were placed with family friends. At the request of DYFS, the Family Part ordered S.A. to cooperate with substance abuse evaluation and treatment and to undergo random urine screening. The judge also ordered that all visitation with Missy and Corey be supervised.
On February 9, 2005, S.A. was admitted to a one-month inpatient drug treatment program at Saint Clare's Hospital. At the time of her admission, she admitted to heroin and cocaine addiction. Her attending physician also diagnosed her as suffering from an adjustment disorder and depression. After only two weeks, S.A. signed herself out of the Saint Clare's inpatient program against medical advice, promising to attend an outpatient program instead. The program, High Focus, contacted the Division on April 29, 2005, advising that S.A. had not attended its program for more than a week and would be discharged unless she quickly re-enrolled. A week later, when S.A. had made no effort to resume treatment, High Focus discharged her for failure to attend.
In the months that followed, S.A. remained noncompliant with treatment, and failed to report for court-ordered urine screening on May 16, May 17, May 23 and June 10, 2005. The one urine screen that was performed, on June 1, 2005, was positive for cocaine, opiates and morphine.
Approximately one month later, on July 14, 2005, S.A. was again arrested, this time for criminal trespass, burglary, theft and use of a stolen credit card, for which she was ultimately convicted and sentenced to another five-year probationary term. Two weeks later, S.A. was readmitted to Saint Clare's as a result of heroin and cocaine abuse; however, she again left the hospital against medical advice, this time only four days after admission. As a result of S.A.'s worsening drug problem and her continued pattern of arrests, DYFS placed Corey and Missy with their maternal grandparents on October 24, 2005. The Division's plan for Missy and Corey included termination of S.A.'s parental rights followed by adoption; however, after S.A. made a commitment to remain drug-free and comply with all DYFS recommendations, the Division returned both children to her custody on June 14, 2006.
As a result of S.A.'s guilty plea to probation violations on November 14, 2005, a judge ordered her to enroll in a six to twelve-month inpatient drug treatment program at Epiphany House. However, before completing the program, S.A. relapsed and withdrew from the program.
Because of S.A.'s numerous relapses and her refusal to cooperate with drug treatment, on November 6, 2006, the Family Part entered a dispositional order transferring custody of Corey to his father, where he has remained ever since. Missy was placed in the custody, care and supervision of DYFS. On April 23, 2007, S.A. surrendered her parental rights to Missy in favor of her parents, who subsequently adopted her.
As we have noted, C.B. was born on June 29, 2007. Thus, by the time of C.B.'s birth, S.A. had already lost custody of three children, had been arrested and convicted three times and had failed at five different inpatient and outpatient drug treatment programs by either failing to complete them or by prematurely leaving against medical advice.
As to C.B., the record demonstrates she was born testing positive for opiates. On November 4, 2007, when C.B. was less than four months old, S.A. was again arrested, this time for shoplifting, possession of a controlled dangerous substance and possession of drug paraphernalia. C.B. was with S.A. when S.A. was arrested. When police notified DYFS, the agency immediately placed C.B. with her maternal grandparents. At the time of her arrest, S.A. admitted to shoplifting with the intention of selling the merchandise in Newark to "purchase drugs to get high." She also admitted to using heroin the night before while caring for C.B.
Although S.A. was released on bail on November 10, 2007, she was arrested again ten days later for fraudulent use of credit cards. S.A. also acknowledged to DYFS that she had been observed by police purchasing illegal drugs a month earlier, but had managed to avoid arrest by offering to make a controlled buy from the drug dealer.
After S.A.'s release from jail, the Division again offered her an array of services to facilitate reunification. In particular, DYFS referred S.A. to an intensive outpatient drug treatment program; however, S.A. was discharged on July 16, 2008 because she had not attended the program since May 7. Additionally, although DYFS provided S.A. with supervised visitation, S.A. was terminated from that program after canceling two visits and making no effort to reschedule.
DYFS also arranged for a psychological evaluation of S.A., which was conducted on January 29, 2008 by Heidi Jacobsen, Ph.D., of the Family Enrichment Program at Morristown Memorial Hospital. Jacobsen diagnosed S.A. as suffering from a narcissistic personality disorder that caused her to minimize the impact of her addiction and frequent incarceration on her ...