On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-0023-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically May 13, 2010
Before Judges Payne, Waugh and Fasciale.
Mother, C.W. (fictitiously Carol), appeals from a trial court order of April 29, 2008 terminating her parental rights to her two biological daughters, A.R. (fictitiously Anne) and H.W. (fictitiously Helen), ages sixteen and seven, respectively, at the time of trial. The daughters have different fathers. Anne's father is R.C.; Helen's father is D.W. (fictitiously Doug). R.C. has not been located. At the time of the trial of this matter, Carol was married to Doug, who had two other children, a daughter, B.McE., and a son, D.W.Jr., as the result of a relationship with another woman. Prior to the trial of this matter, Doug had given up his parental rights to B.McE., who has been adopted by an aunt. Doug's rights to D.W.Jr. were terminated in this proceeding, but are not the subject of this appeal. Doug has not appealed from the order terminating his parental rights to any of his children.
The family first came to the attention of the Division of Youth and Family Services (DYFS) in 1996. Over time, various complaints about Doug were submitted to DYFS including complaints of his domestic violence, sexual abuse and drug addiction. In 2001, Carol and Doug were married. In May 2006, Carol and Doug signed a DYFS safety protection plan, in which they agreed that Carol would supervise all contact between Doug and the children. However, on June 14, 2006, Carol was arrested for forging a prescription for Oxycontin. She remained in custody from approximately 1:00 p.m. to 6:00 p.m. that day, and during that time, Doug had sole custody of the children. No harm befell them during this period. DYFS learned of these circumstances on June 26, 2006, and following an investigation, substantiated neglect of the children by Carol and Doug. It was agreed that Carol, Anne and Helen would live with Carol's mother and that the mother would supervise Carol's contact with her children. Additionally, the parents were ordered to submit to urine screening, and Doug's results were positive. The record contains no reference to the resolution of any charges against Carol.
On July 6, 2006, Carol and the two girls moved in with Carol's mother. However, the mother alleged that, while living there, Carol stole her prescribed Oxycontin and check book and used her credit card without authorization to do so. It appears that Carol left her mother's residence in July 2006, but that the girls remained.
On August 1, 2006, the court entered an order to show cause and appointed a law guardian with temporary custody in the matter. The order provided that the removal of the children was required due to imminent danger to their life, safety or health arising from Carol's arrest for forging a drug prescription and from Doug's continuing use of cocaine.
Although Carol had not tested positive for drugs during her first assessment, it was recommended that she undergo an extended substance abuse assessment. That assessment took place on August 24, 2006, and at that time, Carol tested positive for cocaine. Thereafter, Carol cancelled appointments for further assessment on August 31 and on five occasions in September, but appeared on September 18, 2006, and agreed to begin Level II outpatient drug treatment in the WARN program at Preferred Behavioral Health on September 20, 2006. According to DYFS, at the time, Carol was "in pre-contemplation stage of change and at this point [she] does not appear to recognize the need to change her [behavior] and is unaware of the severity of her problem."
In October 2006, Carol's grandmother, who lived in Maryland, became terminally ill. Because she could not find adequate relative care in New Jersey, Carol's mother took the girls to Maryland while she cared for the grandmother. Although DYFS had, on a prior occasion, authorized Carol's mother to take the girls out of state on a temporary basis, on this occasion, it refused to do so. On October 30, 2006, custody of the two girls was transferred from Carol's mother to Carol's step-brother and his wife in Maryland. Carol and Doug were permitted to have a brief visit with their children that day, prior to their departure. The children have remained with their maternal aunt and uncle since that date. Carol has visited them infrequently, but the record reflects that she spoke to them by telephone once or twice every week.
Additionally, on October 30, 2006, Carol and Doug entered a Title 9 stipulation admitting that they committed acts constituting abuse or neglect of their children. The stipulation provided that Carol "wrongfully used prescription drugs, having been arrested for forging a prescription and using other illicit substances while [in]*fn1 a [care]taking role. Father [Doug] [illegible] used illicit substances and children were placed at risk."
At the end of November 2006, Carol was terminated from the WARN program for tampering with her urines ...