On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-13-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2010
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
In this opinion, we address challenges to a Family Part judgment terminating the parental rights of defendant D.M.B., the mother of three children identified as J.D.B., J.A.B. and J.M.B. The judgment also terminated the parental rights of the children's father, A.J.B., who has not filed an appeal. Consequently, we omit from our opinion any discussion regarding A.J.B.'s parental capacity, psychological health and relationship with the children, and confine our review to the portion of the Family Part judgment as related to D.M.B. that awarded plaintiff, the Division of Youth and Family Services (the Division), guardianship of the children to effectuate their adoption by their respective caregivers.
D.M.B. argues the facts are insufficient to sustain the judgment of guardianship by clear and convincing evidence. Her primary challenge, however, asserts the judgment must be vacated because the trial court utilized much of the Division's post-trial submission in its Memorandum of Decision, abrogating its responsibility to make findings of fact and conclusions of law.
Following our review of the record, we agree the trial court's wholesale adoption of much of the Division's trial submission without attribution is highly inappropriate and fails to conform with the requirements of Rule 1:7-4(a). Nevertheless, we decline to remand this matter for retrial by another judge and discern this record appropriately lends itself to our exercise of original jurisdiction.
We are permitted to exercise original jurisdiction when necessary for the complete determination of any matter on review. R. 2:10-5; see also N.J. Const. art. VI § V, par. 3, (authorizing the exercise of original jurisdiction "as may be necessary to the complete determination of any cause on review."). In this matter, the exercise of our original review is warranted because the importance of resolving the status of these three children and noting that the unavoidable passage of significant time pending appeal mandates no further delays occur. Pressler & Venerio, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2011) (the appellate court may opt "in appropriate circumstances and particularly where there has been considerable litigation delay, to decide the legal issues clearly raised despite lack of findings of fact").
Following our examination of the trial record, we determine the Division has presented clear and convincing evidence to support the four-pronged statutory test for an award of guardianship, N.J.S.A. 30:4C-15.1(a)(1) to (4). Accordingly, we affirm the judgment terminating the parental rights of D.M.B.
The facts are not disputed. Our focus is limited to D.M.B.'s three children fathered by A.J.B.*fn1 After his birth on October 6, 1997, J.D.B. was placed in foster care directly from the hospital. The Division removed the child after receiving a referral from a nurse, who identified concerns with D.M.B.'s ability to care for her newborn son. When D.M.B. began psychiatric treatment and counseling, and her mother agreed to assist in J.D.B.'s care, the Division returned the child to his mother and continued to supervise the family.
J.A.B. was born on November 29, 1998. Two days before Christmas, D.M.B. called the Division asking that her sons be placed in foster care, admitting she had used alcohol and marijuana during her pregnancy. D.M.B. later withdrew her request when her brother agreed to stay with her to assist in the children's care. In a follow-up visit on January 26, 1999, D.M.B. reported everything was fine and she was involved with the Treatment Alternatives for Children at Risk program. The Division offered counseling and parenting classes, which D.M.B. declined.
Shortly thereafter, D.M.B. threatened her mother, claiming she would cut out her heart with a knife. The episode was prompted by D.M.B.'s mistaken belief that her mother and boyfriend were engaged in a sexual liaison. The Division suggested, and D.M.B. agreed, J.D.B. and J.A.B. would be placed in foster care while she was treated at Our Lady of Lourdes Crisis Unit. The hospital prescribed medications including Depakote and Cogentin, with which D.M.B. remained compliant. She also revealed five prior psychiatric hospitalizations. D.M.B. was discharged on May 3, 1999. Shortly thereafter, J.D.B. and J.A.B. were returned to her care, assisted by her mother.
Prior to the Division's final removal of the children, these additional referrals were received and investigated. On December 11, 2001, D.M.B. telephoned the Division stating she was three months pregnant, not taking her medication, overwhelmed and afraid she might hurt J.D.B. and J.A.B. She requested the Division remove the boys. When a caseworker arrived, D.M.B. explained she feared she would be unable to care for the boys, as her mother had been hospitalized and A.J.B. threatened to leave her. D.M.B. reconsidered the need for the Division's assistance when A.J.B. agreed he would remain in the home until her mother returned.
In 2002, D.M.B. contacted the Division alleging J.D.B. had been sexually abused while in the care of D.M.B.'s niece. The Division requested that Martin Finkle, M.D. examine the child. Dr. Finkle found no signs of sexual abuse.
On October 14, 2002, Bellmawr Police Department Sergeant Gordon Muller called the Division when he encountered D.M.B. at a local convenience store with the children. The boys wore underwear and diapers, "no coats, no shoes, [and the] mother refused to take the children inside [the store]." D.M.B. admitted the children were shoeless and coatless, stating the boys were being punished. D.M.B. conceded she did not know how to control her sons and felt overwhelmed.
On October 4, 2004, Regina Andrews-Collette, a Bellmawr Public School (BPS) social worker, wrote to the Division seeking "intensive services" for D.M.B. and J.A.B. because the child's school behavior was "very dangerous and out of control." In her letter, Andrews-Collette described six-year-old J.A.B.'s disruptive and alarming behaviors to include, "bang[ing] his head on the floor for 20 minutes, screaming and hollering during the entire period[,]" stealing objects from his teacher and standing on his "desk screaming at the top of his lungs." When the child's teacher discussed these concerns with D.M.B., she laughed and stated "no one is going to tell her how to raise her kid."
On May 13, 2005, the Division substantiated D.M.B.'s educational neglect because the children were not attending school. BPS reported J.D.B. missed forty unexcused days of school, and was late an additional twenty-five times. The school initiated municipal court charges against D.M.B. for enabling the children's truancy. When a Division worker visited D.M.B.'s home, which was clean and orderly, the children appeared to be in good health. D.M.B. revealed she had been diagnosed with paranoid schizophrenia and was prescribed appropriate medication. D.M.B. agreed to see to it that the children attended school on time, every day. Because D.M.B.'s mother was living in the home and D.M.B. did not appear to be a physical threat to the children, the Division recorded no immediate safety concerns.
Shortly after J.M.B. was born on June 17, 2005, D.M.B. lost her housing. On July 28, 2005, the Welfare Department arranged for her and the three children to be placed in the Howard Johnson Motel in Blackwood. Two weeks later, the Division received a referral from a motel office worker reporting D.M.B. was using drugs and often left the three children with "inappropriate babysitters," referring to a couple who physically assaulted, yelled and cursed at each other while watching the children.
When the Division investigated, D.M.B. maintained she had been abstinent for six years and was attending the Berlin Partial Care program, supervised by the Steininger Center, four times a week. She expressed some difficulty coordinating the children's school and activity schedules with her own. At the Division's request, D.M.B. submitted to a drug screen and the allegations of abuse and neglect were determined unfounded.
On July 2, 2006, the Division received a referral from a childcare coordinator for a single mother's group, who reported D.M.B. had called for assistance, stating she was under the influence and not able to handle her children. When the Division responded to the home, eight-year-old J.D.B. answered the door. He was alone with his two younger siblings, and did not know his mother's whereabouts or how to contact his grandmother. J.D.B. told the worker D.M.B. was upset after learning her boyfriend cheated on her and stated she would be back in three weeks. The children were crying and hungry. When the Division finally reached D.M.B. by telephone, she said she was not returning home because she could not care for the children. D.M.B. also commented that she did not care if the children were placed in foster care, as "[s]he grew up under [the Division] and she [wa]s fine." D.M.B. did request the Division not separate the children, yet offered no possible relatives who might provide temporary care. D.M.B. also admitted she was again pregnant.
The Division contacted the police and exercised an emergency removal. On July 25, 2006, the trial court granted the Division's request for care, custody and supervision of J.D.B., J.A.B. and J.M.B.
After more than a year of unsuccessful efforts to resolve the problems causing the children's removal, the Division filed its complaint for guardianship on September 11, 2007. We review the Division's efforts toward reunification made prior to requesting the termination of parental rights.
D.M.B. was first evaluated on July 20, 2006 by the Center for Family Services (CFS). D.M.B. admitted she had abused alcohol within the past thirty days, and had, at other times, used marijuana, cocaine, amphetamines and methamphetamines. CFS diagnosed D.M.B. as suffering from "Alcohol Dependence in partial remission," and "mental health issues[.]" D.M.B. was referred to the substance abuse program at NewPoint Behavioral Health (NewPoint).
CFS modified its referral to provide services directed to D.M.B.'s combined needs of mental illness and chemical addiction (MICA). She enrolled for intensive outpatient services at the Kennedy Hospital Behavioral Health Center. In November 2006, D.M.B. was arrested for driving under the influence and again was admitted to the Family First Treatment Program (FFTP). In January 2007, although D.M.B. reported she was pregnant and substance-free, she tested positive for cocaine. By February 2007, D.M.B. had relapsed and FFTP discharged her for noncompliance.
Norman D. Schaffer, Ph.D., interviewed D.M.B. in the course of a parental fitness evaluation, conducted on August 25, 2006. Dr. Schaffer noted D.M.B. needed to address her "complex set of mental problems," history of trauma, her failures as a parent and the lack of insight and understanding regarding the problems faced by her children. He recommended D.M.B. immediately commence counseling, closely supervised by an experienced psychotherapist, ideally once per week and no less than twice a month.
Edward Baruch, M.D., conducted a psychiatric evaluation on February 22, 2007. D.M.B. admitted she was noncompliant with her mental health medications, and challenged the accuracy of the positive drug test the month before, reporting she was three months pregnant so she "had not used drugs." Dr. Baruch diagnosed D.M.B. as suffering "Alcohol Abuse early remission"; "Cocaine Abuse in early remission"; "Substance Induced Mood Disorder"; "Major Depression"; and sought to "Rule Out Bipolar Disorder[.]" His offered treatment recommendations included intensive outpatient drug treatment, attendance at alcohol anonymous (AA) meetings and the possible use of an anti-depressant, if approved by her obstetrician.
From April 14, 2007 to June 5, 2007, D.M.B. attended an eight-week parent education program through Famcare. She declined to complete the out-of-class work and only reluctantly participated in classroom activities and discussions. D.M.B. often left the classes "for unexcused periods of time" to smoke cigarettes and "on one occasion was observed leaving the building" to get something to eat. Famcare reported "her behavior and lack of participation in class was unacceptable, and did not allow for a proper learning opportunity." Prior to consideration of reunification, Famcare recommended D.M.B. enroll in a more intensive parenting course to address the "many inappropriate expectations [she has] of children, and the inability to understand her role as a parent."
During this period, the Division contact sheets recorded "bizarre and inappropriate behavior during the [supervised] visits." D.M.B. ignored the supervisor's instructions to limit topics of conversation with the children. Instead, she discussed her alcohol and drug abuse and sex, made derisive comments about their sibling's father and suggested to the children they would soon be returned to her care.
On September 11, 2007, D.M.B.'s tenth child, B.B.B., was born. The Division immediately intervened, removing the child and filing a separate action for B.B.B.'s care, custody and supervision. The Division contemporaneously filed its complaint in this matter to terminate D.M.B.'s parental rights in order to allow the adoption of J.D.B., J.A.B. and J.M.B.
D.M.B. participated in a psychological evaluation conducted by Dr. Martha Boston to discern her ability to care for B.B.B. The interview reflected D.M.B. was functioning within the average intellectual ability range and was not clinically depressed. Dr. Boston discerned D.M.B.'s cognitive abilities likely had been affected by her extended drug use and concluded her mental health issues precluded her reliable care of B.B.B.
On November 19, 2007, D.M.B. attended a psychiatric evaluation by Michael Friedman, D.O., who noted "[o]verall, [D.M.B.] was defensive and frequently tried to rationalize her mental illness symptoms[.]" Dr. Friedman stated D.M.B. tended to "minimize responsibility and externalize blame regarding her predicament with the Division's involvement regarding all of her children." Further, she was "clearly mistrustful and... especially suspicious of the Division, and perceived intentions... regarding her children."
Dr. Friedman's diagnosis included post-traumatic stress disorder (chronic), panic disorder with agoraphobia, depressive disorder, alcohol dependence and poly-substance abuse. He concluded D.M.B.'s "history of tumultuous relationships and erratic behavior in combination with her current level of suspiciousness and rationalization, cause[d] concern... regarding her ability to provide an emotionally stable environment for her children." Dr. Friedman recommended D.M.B. participate in continued outpatient psychiatric medication monitoring, attend partial-care counseling, enroll in a MICA program and continue weekly psychotherapy and AA attendance.
D.M.B. again enrolled in NewPoint on January 2, 2008. A staff psychologist concluded D.M.B.'s post-traumatic stress disorder, alcohol and cocaine dependence, and possible borderline personality disorder seriously impeded her level of functioning. D.M.B. was prescribed ten milligrams of Lexapro. Unfortunately, she made little progress toward long-term sobriety, seemed ambivalent about her relapses, and ...