On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-85-08.
The opinion of the court was delivered by: Lihotz, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 22, 2010
Before Judges Axelrad, R. B. Coleman*fn1 and Lihotz.
In these two appeals, calendared back-to-back and consolidated for the purpose of this opinion, we address challenges to a Family Part judgment terminating the parental rights of defendant K.G., the father, and defendant T.S., the mother, and awarding plaintiff the Division of Youth and Family Services (the Division) guardianship to effectuate the adoption of now twelve-year-old M.S. Each parent seeks reversal, arguing the Division failed to present clear and convincing evidence to sustain the judgment terminating parental rights.
When the Division intervened and was granted custody, care and supervision of M.S., K.G. was incarcerated and T.S. was drug dependent and later faced criminal drug charges. During trial, held in March and April 2009, K.G. remained housed in Southern State Correctional Facility. T.S. had successfully completed drug rehabilitation and was compliant with all requirements of her probation; however, the court found the risk of her possible relapse remained high, and she was not sufficiently stable to care for M.S.
The Division reported that its initial goal of adoption by the resource family proved unworkable; nevertheless, it sought termination of parental rights with the prospect of locating a select home placement to secure M.S.'s adoption. Weighing the factual and expert evidence and relying on M.S.'s expressed desire not to see her mother, the court concluded the Division had proven all four statutory prongs, including that M.S. would not suffer more harm than good if parental rights were terminated.
Following trial, any expectation of a smooth passage was disrupted. Subsequent events, related in motions and during oral argument before us, have significantly shifted the landscape of this family's circumstances. Specifically, M.S. remains in a foster placement, which may present safety issues and has not been scrutinized by the court. T.S. continues her sobriety, is fully compliant with parole, remains employed and sustains adequate housing. Additionally, the child has changed her prior position and, now, expresses a desire to reconnect with her mother.
Following our review of the arguments presented by each parent, the Division and the Law Guardian, in light of the record and applicable law, we affirm the termination of parental rights as applied to K.G. However, as applied to T.S., we conclude the factual support underpinning the guardianship judgment has been sufficiently eroded that the judgment must be vacated and the matter remanded to the trial court for further review of the status of mother and child.
The facts taken from the trial record are generally undisputed. On December 4, 2006, the Paterson Police Department received a call from D.G. explaining she was M.S.'s aunt. The eight-year-old child had been left alone, outside, without a coat and her mother could not be contacted. The police referred D.G. to family court where she proceeded to seek an order of custody and was advised to contact the Division. D.G. spoke to Division caseworker Veronica Zeron and expressed her concern for M.S.'s safety because of T.S.'s drug use and inability to care for her daughter. D.G. also confided to the caseworker her belief that M.S. was protective and defensive of her mother. D.G. agreed she would care for M.S., if approved by the Division.
Zeron interviewed M.S. at school. The child appeared clean and healthy. She stated that, when her aunt found her, she was visiting her cousin's home and had a jacket but thought it had been stolen. Zeron noted the child was concerned her mother might go to jail. Zeron also recorded M.S.'s description of how her mother "[smokes] cigarettes and then goes to sleep."
That day, Zeron went to T.S.'s home, but was told she was unavailable. When Zeron returned the following day, T.S. answered the door, appearing disheveled, as if awakened. T.S. characterized D.G.'s account of events as "a lie" and mumbled that she was "going to beat the shit out of [D.G.]." During the interview, Zeron observed T.S. made no eye contact, displayed a flat affect, gave one-word answers that appeared delayed rather than spontaneous, and actually dozed off. Zeron concluded T.S. was under the influence of drugs and conveyed the Division would seek an emergency removal of her daughter.
As Zeron reached her office, she received a telephone call from a school official stating T.S. had arrived, appeared to be under the influence of drugs, and was attempting to remove M.S. from school. Zeron traveled to the school to speak to T.S., who was adamant that M.S. not be placed with D.G. Zeron capitulated and agreed M.S. would be placed in foster care for the evening. Zeron's report substantiated T.S.'s drug dependence, which caused M.S. to be abused.
T.S. was referred for outpatient drug rehabilitation treatment, scheduled for a psychological evaluation and provided a visitation schedule (every other week for two hours). From December 2006 through June 2, 2007, T.S. tested positive for either marijuana, phencyclidine (PCP), or both, had difficulty abiding by the terms of the agency treatment agreements and displayed limited enthusiasm to actively engage in treatment. It is unnecessary to recite the varied treatment programs offered to T.S. Suffice it to say that one year after M.S.'s removal, T.S. displayed an overall unwillingness to tackle her addiction. She was repeatedly discharged from both outpatient and inpatient drug rehabilitation programs arranged by the Division because of poor attendance, behavioral concerns and lack of interest.
In April 2007, T.S. was arrested for possession of PCP, her first criminal offense. After a second arrest for a probation violation in February 2008, T.S. was granted admission to the county Drug Court program. At the child's request, T.S.'s visitation with M.S. was ordered suspended on May 30, 2008.
After she was removed from T.S.'s care, M.S. went to live with D.G. in December 2006. That placement was short-lived. The Division removed the child following the murder of D.G.'s brother in the room adjacent to M.S.'s bedroom. On January 10, 2007, M.S. was placed with the G. family. This placement lasted until January 2009, when the G.'s requested the child's removal.
At trial, the Division proposed a plan for M.S.'s adoption by a select home, although a specific adoptive family had not been identified. M.S. was temporarily staying with the A.'s, who had advised they were unable to adopt her. In June 2009, when the trial court rendered its opinion, the G.'s had reconsidered and M.S. was returned to their care with the expectation of adoption. Unfortunately, in January 2010, the G.'s again retracted their intention to adopt M.S. and requested her removal. M.S. finished the school year while living with the school nurse then returned, as a foster placement, to the A.'s home. Today, the A.'s are being considered by the Division as a prospective adoptive placement.
When M.S. was removed from her mother's care, the Division learned K.G. was the child's father. K.G. was incarcerated following a guilty plea and conviction for distributing a controlled dangerous substance within 1000 feet of a school zone. He was serving a five-year term, subject to a three-year period of parole ineligibility. The record contains little regarding K.G.'s relationship with M.S. A March 26, 2008 order required the Division to arrange telephone contact between K.G. and his daughter. Communication was later suspended pending a report from the child's counselor. K.G. declined to attend a mediation session held on July 11, 2008.
On September 17, 2008, K.G. offered Y.P., the mother of two of his children, as a placement resource for M.S. Division caseworker Natalyah M. Cruz inquired whether M.S. knew Y.P. She apparently did not and M.S. expressed a desire not to be taken from her foster family, the G.'s. During an October 7, 2008 psychological evaluation by the Division's expert, Robert J. Miller, Ph.D., K.G. repeated his request that Y.P. care for M.S.
The Division proceeded to investigate K.G.'s request. Caseworker Tasha Manradge, f/n/a Tasha Westbrook, reviewed Y.P.'s background check and housing assessment. Although no identifiable problems were reported, the Division declined to place M.S. with Y.P. based upon the child's expressed desires not to be moved.
The Division's complaint for guardianship was filed on March 26, 2008. All contact between M.S. and her parents remained suspended pending a recommendation for its resumption by her therapist. The five-day trial commenced on March 23, 2009. The Division presented testimony from caseworkers Cruz and Manradge, who recounted the Division's involvement with the family. In addition to relating the factual circumstances causing placement and the services extended by the Division, the caseworkers repeated comments made by T.S. and M.S. during visits and interviews. For example, Manradge stated that on June 16, 2008, at a time when the child was not seeing her mother, M.S. said she wanted "five minutes with her mother to tell her that she wants her to leave her alone." Additionally, documents were moved into evidence including the Division contact sheets, progress reports, health evaluations, psychological assessments, counseling reports, drug screens, school records, medical and expert reports.
The Division advanced its proposal to pursue a select home adoption for M.S. through the testimony of Division supervisor Janet DaSilva. DaSilva discussed the Division's proposal, including the consideration that M.S. be returned to the G.'s. DaSilva expressed her confidence that despite her age, M.S. was an engaging child and would likely find adoptive parents. She explained the G.'s remained a possible placement because M.S. had expressed a desire to return to the G.'s "if they would have [her]." The Division had requested a psychological assessment to review the G.'s stability so ...