On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-297-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2010
Before Judges Reisner and Sabatino.
Defendant J.R.W. appeals from a June 1, 2009 order terminating her parental rights to her two children, H.M.W. and S.T.W. We affirm.
The history of this case and the pertinent evidence were exhaustively described in Judge Katz's comprehensive written opinion issued June 1, 2009. They need not be repeated here in the same detail. As the judge outlined in his opinion, the children were born in 2003 and 2004, respectively. Primarily due to J.R.W.'s persistent substance abuse problems, which long pre-dated the older child's birth, the children have never lived with her. Instead, they lived with her mother, M.W., for a short time, followed by placements with separate foster families, with whom they have each now lived for several years. Unrebutted expert testimony established that, for both children, the foster parents have become their psychological parents. The children have a parent-child bond with their foster parents and would each suffer significant and enduring harm if separated from them.
The foster parents have each expressed to the children's caseworker their commitment to adoption. Although it is not a legally enforceable commitment, each foster parent expressed to the caseworker a willingness to allow the children to maintain a continuing relationship with their biological family after adoption. They have taken concrete steps to support that relationship by, for example, inviting the biological family members to H.M.W.'s kindergarten graduation.*fn1 They also expressed a commitment to fostering contact between the children. At the guardianship trial, the Division of Youth and Family Services (DYFS) offered to have the foster parents testify to all of these facts, but J.R.W.'s counsel stipulated to the truth of the agency's representations without the need for the foster parents' testimony.
While the children were in foster care, J.R.W. failed to address her substance abuse issues and was not able to secure either stable employment or housing. Expert testimony established that she also has serious psychological problems that would interfere with her ability to care for these children. Indeed, on this appeal, J.R.W. does not contest the trial court's determination that she is incapable of parenting her children. Rather, J.R.W.'s appellate arguments focus on her contention that her mother M.W. should have custody of the children. Hence, we turn to that issue.
The children were initially placed in M.W.'s home in 2004, but were removed for two reasons. First, she permitted J.R.W. to take one of the children to the hospital, although M.W. knew that due to J.R.W.'s untreated drug addiction the children were never to be left alone with her. Second, in the same time frame, the other child was examined and found to have broken ribs. Doctors later concluded that the child had fragile bones and the injuries were not the result of abuse.
In 2006, J.R.W. entered into an identified surrender of the children to her mother. However, the children were not immediately placed with M.W., due to concerns that she was developing significant memory problems, and the fact that M.W. continued to allow her son R.W., a convicted child molester, to visit her home.*fn2 Through further investigation, DYFS also learned that while M.W. had custody of the children in 2004, she had actually allowed R.W. to live in her home. She later admitted that R.W. was living in her home until July 2007. M.W. also was unwilling to commit to excluding J.R.W. from her home, despite J.R.W.'s continuing use of illegal drugs. She told a caseworker that she could not keep her children from visiting her. In a 2007 evaluation, an examining psychologist, Dr. Andrew Brown, opined that the children had bonded with their foster parents, did not have the same bond with M.W., and should not be moved from their foster homes. Based on that evidence, DYFS ruled out M.W. as a guardian for the children, and Judge Floria vacated the identified surrender.
Prior to the guardianship trial, DYFS and the Law Guardian obtained additional psychological evaluations of M.W. and new bonding evaluations of the children with M.W. and with the foster parents. The 2008 bonding evaluation determined, once again, that the children were bonded with their foster parents. According to the State's expert psychologist, Dr. Mark Singer, as a grandmother, M.W. was an important figure in the children's lives, but she was not a parental figure. He opined that the children could emotionally survive a separation from M.W. but not a separation from their foster parents.
Dr. Singer also opined, based on psychological testing, that M.W., then age sixty-six, had some memory problems which could hinder her ability to care for the children. More significantly, he opined that she would be unable to protect the children from her son R.W. Dr. Singer opined that M.W. has a rigid personality, and she does not believe that her son is a child molester. She also sees herself as a "caretaker" and has a strong desire to please people. Dr. Singer opined that, although she might understand intellectually that she had a legal obligation to keep R.W. away from the children, she would not be able to turn him away if he wanted to spend time at her home or needed a place to live. He opined that M.W. would also be unable to keep J.R.W. from visiting her home despite J.R.W.'s ongoing drug problems. Dr. Donna LoBiondo, a psychologist ...