On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FG-21-102-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Lihotz.
Defendant J.J. appeals from a October 16, 2008 default judgment terminating her parental rights to her two children -V.Z. and R.G.Z., III (R.G.Z.). Following the entry of a default against defendant and an unsuccessful motion to vacate the default, a proof hearing was conducted. Judge Goodzeit in the Family Part concluded the Division of Youth and Family Services (DYFS or the Division) had established by clear and convincing evidence the requisite four prongs to terminate parental rights enunciated in N.J.S.A. 30:4C-15.1a. We affirm.
These are the relevant facts adduced from the record. V.Z., currently age five, and R.G.Z., currently age three, are the children of J.J. and R.Z.*fn2 On June 29, 2005, less than two months after V.Z.'s birth, R.Z.'s mother informed the Division that J.J. regularly used marijuana and frequently failed to adequately supervise the child, often roaming the streets with V.Z. at night. After being contacted by a Division caseworker, J.J. denied current use of marijuana, but admitted she had previously abused the drug. She stated she was currently staying at the home of her grandmother, F.J., and agreed to undergo a substance abuse evaluation (SAE) and to inform the Division if she moved.
On July 8, 2005, J.J. appeared for her scheduled SAE at Preferred Children's Services (PCS) in Washington, New Jersey. She denied using marijuana within the last thirty days, but provided a urine sample that tested positive for cannabinoids (THC). While noting that the final level of care "w[ould] be determined on results of a second urine [test]", J.J.'s evaluator referred her to a Family Guidance facility in Phillipsburg for "Level I" outpatient cannabis abuse treatment.
On December 22, 2005, the Division received a second referral from an anonymous caller who stated he "witnessed [J.J.] and [R.Z.] . . . smoking marijuana in the[ir] home in front of [V.Z.]" and "sometimes bl[e]w smoke" in the child's face. The caller also claimed the parents had "a black friend from North Jersey" living with them who was selling crack cocaine out of the home. The next day, caseworkers met with J.J., F.J., L.W. (J.J.'s mother) and R.Z. F.J. contended the allegations were false as V.Z. had been staying with her for the last three weeks, not at J.J. and R.Z.'s apartment. Based on this information, the referral was classified as "unfounded." Both J.J. and R.Z. denied ever smoking marijuana in front of V.Z. or blowing smoke in her face.
J.J. and R.Z. did acknowledge that a friend, M.D., had been staying in their apartment. However, their description of M.D.'s alleged drug use or drug dealing, as well as their response to those problems, varied. J.J. "admitted [M.D.] is a 'crack head' but denied that he ever did any kind of drugs in their apartment. [She] stated that [they] kicked [M.D.] out of the home last week because he never gave them any rent money." In contrast, R.Z. stated he and J.J. "did not know that [M.D.] was a 'crack head' when they allowed him to live with them [and] stated that as soon as they found out from [M.D.'s] girlfriend that he used crack, they kicked him out."
On February 17, 2006, J.J., L.W., and F.J. signed a case plan subjecting J.J. and R.Z. to more frequent drug evaluations and compelling them to refrain from drug use, providing that V.Z. would continue to stay with F.J. until a June 2006 reassessment, and stating that "[n]on-compliance may result in removal of [the] minor child."
Despite this warning, J.J. provided another urine sample three months later which tested positive for THC. This test was discussed at a May 30 meeting between J.J., F.J. and the Division's case supervisor. The supervisor stressed that J.J. would require two negative screenings before the Division would consider returning V.Z. to her care. F.J. stated she loved having V.Z., but "it [was] a concern to the family the length of time it is taking for [V.Z.] to be returned to the care of her parents[.]"
The supervisor also conducted a review of the services provided to J.J., determining that (1) J.J. was in danger of losing rental assistance, as continuing receipt of funds for that purpose required her to sign up for General Assistance (GA) by June 1, however J.J. had not yet contacted that agency; (2) due to V.Z. residing with F.J., J.J.'s Temporary Aid to Needy Families (TANF) benefits had been reduced to cover only partial utility costs; and (3) she was receiving vocational training and was currently testing for her G.E.D.
Two days later, on June 1, L.W. and J.J. went shopping with V.Z. When they returned home, J.J. allegedly refused to part with the child. L.W. called the police, who refused to intervene "because there were no custody papers." L.W. then contacted F.J., who called the Division claiming that "she and [L.W.] have had the baby since November" and that "DYFS 'gave' them custody." Before there could be any further intervention, J.J. contacted F.J. and L.W. to apologize and requested they pick up V.Z. The Division contacted the local police department to confirm the child returned home safely.
By mid-June, the D. family - next-door neighbors of F.J. - came forward as a resource family "to care for [V.Z.]." The D.'s had been helping F.J. care for V.Z. when the child was in her home. The Division's investigation of the family continued through July and early August, and concluded that there are no concerns regarding Mr. and Mrs. [D.] They are very appropriate and their home is neat and clean. There is plenty of space in the home for a child as well as adequate furnishing . . . .
All of the references regarding Mr. and Mrs. [D.] have been received with positive feedback. They are medically cleared, their police reports were received with no criminal history, and Mr. [D.'s] employment reference was received with positive feedback.
J.J. underwent an additional SAE at PCS on June 30, 2006. She acknowledged being pregnant and stated that she had last used marijuana on May 24. Her Diagnostic Impression Report from this visit notes that "[R.Z.] is not helpful or able to care for [J.J.] and her unborn baby. He does not appear to be supportive of treatment, or concern[ed] she is smoking marijuana while pregnant." As a result of the evaluation, J.J. was referred to Warren Hospital's Alcohol and Drug Recovery Center (ADRC) for "Level II.I - Intensive Outpatient" treatment.
On August 2, 2006, the Division filed an Order to Show Cause (OTSC) seeking temporary custody of V.Z. and to appoint a Law Guardian for the child. Premised on the "parents['] homelessness and marijuana use," the then trial judge ordered J.J. "to complete a risk assessment and comply with random urines and complete the ADRC program." The Division then placed the child with the D. family. However, the Division's lack of communication with F.J. regarding the placement soon became apparent, as [Mrs. D.] told [F.J.] that DYFS placed [V.Z.] with her and [F.J.] started yelling at her and threatening to get a gun and shoot [Mrs. D.] and [her] daughter. [Mrs. D.] stated that [F.J.] was an excorrection's officer and had guns in her home. [F.J.] told her that she would have [DYFS] start an investigation on her. . . . [A responding police officer] stated that [Mrs. D.] could sign a complaint against [F.J.] for the threats. [Mrs. D.] said that she did not want to put an eighty year old woman in jail.
These circumstances prompted the Division to place V.Z. with a family in Alpha "for a night or two" until F.J. could be brought to terms with the new arrangement.
The next day, August 3, a Division case supervisor met with J.J. to discuss the removal. J.J. approved of V.Z.'s placement with the D.'s, noting it would allow "open contact" with the child for her and her family and that she did not believe the D.'s would seek to adopt the child. The supervisor challenged J.J. regarding her lack of compliance with previous case plans and motivation to take advantage of services. J.J. provided inadequate answers, acknowledging she had continued to smoke marijuana after discovering she was pregnant for the second time, had failed to complete her G.E.D. program and had been fired from a job before it began after calling in late on her first day. As predicted after the May 30 meeting, J.J. did not apply for GA and lost her rental assistance payments. As a result, she was "now [two] months behind on the rent. . . .
[T]he couple was to appear in court and did not[,] so now they are being evicted. [J.J.] answered they did not go to court because no one picked her up . . . ." A urine sample collected on that date tested positive for THC.
In response to the condition contained in the OTSC, J.J. underwent a SAE at Warren Hospital on September 8, 2006. She was found to require "substance abuse treatment at the minimum of an intensive outpatient level of care." After testing positive for THC on September 12 and September 19, J.J. began treatment at the hospital on September 20.
At the October 4, 2006 return date on the OTSC, J.J. waived her right to a fact-finding hearing "at which the Division would have the burden of proof"; stipulated that she abused marijuana while caring for V.Z., which constituted abuse or neglect; consented to the Division's continued legal and physical custody of V.Z. and weekly, supervised visitation with the child; and was ordered to attend and complete the ADRC program. If she fails to fully engage in the next 30 days she is required to enter a long term inpatient substance abuse program. [J.J.] . . . shall be required to undergo weekly urines at the Division office. . . .
If [she] fail[s] to attend or provide a urine sample, the urine will be presumed a positive.
The Division was ordered to reimburse J.J. for mileage or cab fare to the ADRC program.
The next day, J.J. was terminated from the ADRC for "Non-Compliance with facility rules." It was noted she "had several 'no shows'" and was suspected of continuing marijuana use. On October 17, October 26, and November 9, 2006, J.J. tested positive for THC.
On December 20, 2006, the Division received another anonymous referral expressing concern for J.J.'s unborn child.
The caller stated that J.J. and R.Z. were continuing to smoke marijuana and that R.Z. had begun selling crack. J.J. and R.Z. had asked to move in with the reporter, and R.Z. claimed he could easily afford rent with the money he made from his sales of illicit drugs. The Division sought to verify these allegations, but could not complete an assessment as it no longer had an address for J.J. and R.Z.
On January 17, 2007, a compliance review was held in the Family Part. Although counsel was present, J.J. did not appear. Custody and care of V.Z. with the Division were to continue, as was the requirement that both parents continue to submit to regular drug testing. As a result of her termination from ADRC, J.J. was ordered to "attend and complete a long term inpatient substance abuse program." Her visitation with the child was temporarily suspended.
J.J. was also requested to "inform the [c]court and the Division [of] her plans regarding the birth of her second child", which became moot when she gave birth to R.G.Z. later that afternoon. Warren Hospital contacted the Division and stated that J.J. had tested positive for THC immediately after birth. Although the test results for R.G.Z. were negative, J.J. had used marijuana throughout her pregnancy and had missed several pre-natal wellness visits.
On January 19, 2007, the Division removed R.G.Z., pursuant to N.J.S.A. 9:6-8.29. Both parents signed the notice of removal, which advised them of a January 23, 2007 hearing.
R.G.Z. was placed in his present foster home. On January 24, the judge appointed a Law Guardian and granted the Division's request for continued temporary custody of R.G.Z. on grounds of "the use of marijuana by the mother, the father's inability to care due to homelessness [and] the lack of compliance by the defendants with prior court ordered services."
A March 2, 2007 psychological evaluation of J.J. suggested she had an "Extremely Low" verbal IQ but an "Average" performance IQ, a difference of both statistical and clinical significance. Likewise, J.J. was found to be "somewhat emotionally immature," with the evaluator noting her motivation to regain custody of her children is hampered . . . as her own needs for care and concern appear to come first in her mind. She is ambivalent, at best, about growing up and taking on the responsibilities of adulthood, including parenting. While she is currently "clean" from drugs (by her self-report), there does not seem to be a strong recognition that her drug use was really a problem (except in as far as DYFS disapproved) or that ...