On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-06-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Lihotz & Ashrafi.
In these consolidated matters, defendants J.C. and C.D. separately appeal from a June 26, 2009 Family Part order terminating their parental rights and awarding guardianship of their two minor children to the Division of Youth and Family Services (DYFS or the Division) for the purposes of adoption. J.C. is the father and C.D. is the mother of E.D., who was born in 2003, and J.L.D., who was born in 2004.
On appeal, J.C. raises these issues for consideration:
THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO MAKE A DETERMINATION ON THE RECORD THAT DEFENDANT-APPELLANT J.C. WAS EFFECTIVELY FORCED BY THE DIVISION OF YOUTH AND FAMILY SERVICES AND THE COURT INTO ABANDONING E.D. AND J.L.D. IN AN ATTEMPT TO PREVENT THE TERMINATION OF CO-DEFENDANT'S PARENTAL RIGHTS (NOT RAISED BELOW).
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN CONCLUDING THAT THE DIVISION OF YOUTH AND FAMILY SERVICES PROVED EACH OF THE FOUR PRONGS OF N.J.S.A. [30:4C]-15.1(A) AGAINST J.C. AND HIS PARENTAL RIGHTS MUST THEREFORE BE REINSTATED.
DEFENDANT APPELLANT J.C. DID NOT RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PROCEEDINGS TO TERMINATE HIS PARENTAL RIGHTS TO E.D. AND J.L.D. OR THROUGHOUT THE COURSE OF THIS EXTENSIVE AND ONGOING LITIGATION.
In her appeal, C.D. raises these issues:
DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE STATUTORY REQUIREMENTS OF N.J.S.A. 30:4C-15.1.
D[Y]FS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE HARM COMPELLING ENOUGH TO TERMINATE C.D.'S PARENTAL RIGHTS.
DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT C.D. WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HER CHILDREN, OR WAS UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR HER CHILDREN.
DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT CONSIDERED ALTERNATIVES TO TERMINATION OF C.D.'S PARENTAL RIGHTS.
DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF C.D.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.
C.D. RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
The judgment was entered following a second guardianship trial. In affirming the judgment of guardianship, our review considers events starting in 2003 when the Division first became involved with the family.
When E.D. exhibited mild limb tremors at birth, a drug test confirmed she had been cocaine exposed in utero, and the Division was contacted. A drug test performed on C.D. also proved positive for cocaine. Confronted with the test results, C.D. admitted snorting cocaine two or three days before E.D. was born. Although E.D. exhibited no additional health issues, she was retained in the hospital pending DYFS's assessment of possible concerns for the infant's safety. Based upon C.D.'s drug use during pregnancy and the resultant exposure to E.D., the Division substantiated a finding of neglect.
C.D. agreed to enroll in an out-patient drug program at Passaic Beth Israel Hospital (PBIH). She also executed a case plan to provide a "safe, drug-free environment" for her child and accepted placement of an Emergency Child Abuse Protection (ECAP) worker in her Paterson home, where she resided with her mother, A.D., and the baby's father, J.C.
DYFS interviewed J.C. as well. He admitted knowing of C.D.'s cocaine use but refused to undergo a drug test or evaluation. Accordingly, DYFS amended the proposed case plan, which was accepted by C.D. and A.D., to require that J.C. be "removed from the home" and to prevent him from entering the residence "until he cooperates with DYFS." A.D. also consented to avoid leaving E.D. alone with C.D.
At this time, the parents' utilization of the resources extended by DYFS was poor. PBIH reported C.D. missed two intake appointments, submitted another drug test that was positive for cocaine and opiates and, in a Triage Assessment for Addictive Disorders, revealed she used drugs four to six days per week throughout her pregnancy. One final intake appointment was scheduled with PBIH; C.D. appeared and was accepted into the out-patient treatment program. Unfortunately, by September 9, 2003, she had not yet attended a single session. When she began attending thereafter, her progress reports were riddled with absenteeism, and her drug tests showed cocaine and opiate use.
As to J.C., although he had changed his mind and agreed to cooperate with the Division by submitting to a drug evaluation and accepting any recommended treatment, he did not follow through and missed his scheduled appointments. By year's end, A.D. had become E.D.'s "primary caregiver."
In light of C.D.'s failure to progress in her treatment, the Division filed an action for temporary guardianship of E.D. on January 7, 2004. N.J.S.A. 9:6-8.33(a). The court ordered the child placed with A.D. and, further, that C.D. "enter and complete" an in-patient substance abuse program. J.C. was ordered to submit to a substance abuse assessment and "remain accessible to the Division and  be otherwise cooperative[;]" unfortunately, his whereabouts were unknown. Also, the court again "ejected" J.C. from the home. When told J.C. must not live with her and the child, C.D. responded "please do not make me choose between [J.C.] and [E.D.], I can't do it."
DYFS continued its efforts to assist C.D. in obtaining in-patient substance abuse treatment. However, her noncompliance raised "a concern [for] the Division with regard to her capability to care for her 6 month old child, [E.D.]" Faced with the Division's ultimatum that she had "2 weeks to enter a substance abuse in-patient program or be ejected from the home of physical custodian [A.D.]," C.D. enrolled and completed an in-patient treatment program at St. Clare's Hospital. Thereafter, she entered aftercare treatment at PBIH's intensive out-patient day program.
C.D. commenced PBIH's program as scheduled, attended all sessions, and actively participated in group meetings. Her drug screens were negative and, over the next five months, she continued steady improvement. In the meantime, J.C. had been located and was ordered to attend substance abuse treatment after his urine sample tested positive for cocaine. Both parents attended supervised visitation.
A court review hearing held on June 7, 2004, discussed C.D.'s rapid progression through the levels of her program and how she had "improved her self-esteem and her motivation [wa]s positive." Consequently, legal and physical custody of nearly one-year-old E.D. was transferred to C.D., subject to the Division's care and supervision. Both parents were ordered to continue substance abuse treatment and, for the safety of the child, J.C. remained restrained from residing in the home.
On July 30, 2004, C.D. successfully completed her out-patient recovery program, no problems had been identified while the child was in her care, and she was dismissed from the litigation, conditioned on her continued attendance at Narcotics Anonymous (NA). J.C. had not completed a substance abuse treatment program and remained restrained from living in the home with E.D. but was afforded visitation with the child supervised by C.D. or A.D.
Unfortunately, C.D. relapsed. DYFS was contacted by the hospital where J.L.D. was born after C.D. and the newborn tested "highly positive" for cocaine. J.L.D. showed signs of withdrawal, including tachycardia, and was classified as medically fragile. A "hospital hold" was put in place pending DYFS's intervention.
The Division also ordered a medical examination of E.D., which revealed she had an ear infection, needed emergency dental extractions of four teeth because of an untreated infection and had not received her required immunizations. For a second time, the Division substantiated a finding of neglect. When A.D. stated she could not care for both children, the Division executed an emergency removal, placing E.D. and J.L.D. in foster care. N.J.S.A. 9:6-8.29 and -8.30.
On January 6, 2005, the court ordered custody, care and supervision of the children to the Division. C.D. was ordered to attend a thirty-day in-patient program at Sunrise House, followed by out-patient treatment at Eva's Village. J.C. was ordered to ...