On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-163-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2010
Before Judges Rodriguez, Miniman and LeWinn.
M.S. is the birth mother of three children. D, a twelve-year-old girl, is in the permanent custody of her maternal grandparents pursuant to a voluntary surrender. D is not the subject of this appeal. M.S. appeals the termination of her parental rights to her five-year-old daughter, A.R.S-R. (A.R.), and her four-year-old son, A.C.S-R. (A.C.). We affirm.
The New Jersey Division of Youth & Family Services (DYFS) sought termination of M.S.'s parental rights. Following a hearing, Judge Margaret Hayden terminated M.S.'s parental rights; accepted the biological father's voluntary surrender; and granted guardianship of the children to DYFS.
In January 1999, a hospital social worker notified DYFS that M.S. had just given birth to D, who tested positive for opiates. M.S. admitted to consuming pain medications prescribed for another person, and DYFS made a finding of neglect. By July 7, 1999, M.S.'s parents had obtained custody of D. DYFS was involved with M.S. again when she appeared at a hospital in 2004, twenty-weeks pregnant and suicidal. She tested positive for opiates and cocaine. Four months later, DYFS was notified that M.S., now eight months pregnant, had again tested positive for cocaine and opiates. On February 9, 2005, M.S. gave birth to a baby, A.R., who tested positive for cocaine, opiates and hepatitis C. DYFS immediately obtained custody of A.R.
Shortly after A.R.'s birth, M.S. enrolled in an intensive inpatient treatment center, Straight and Narrow, with DYFS's assistance. M.S. successfully completed the Straight and Narrow program; entered a transitional home; and was reunited with her children. While at Straight and Narrow, M.S. gave birth to her third child, A.C., on August 26, 2006. Preparing for her transition to Section 8 housing, DYFS provided M.S. with moving funds, diapers and a home health aide for her newborn, A.C. However, only three months after this transition, DYFS was notified that M.S. appeared to be using heroin again.
Although M.S. tested negative for narcotics, DYFS kept the case open. A DYFS caseworker visited M.S.'s residence on February 28, 2007, and no one answered the door. Hearing children inside, the caseworker summoned the authorities to force the door open. She found six-month-old A.C., in an "extremely dirty diaper," and two-year-old A.R. in a bed. M.S. was not present, and there was a crack pipe in the apartment. DYFS immediately removed the children, and placed them with M.S.'s parents.
On June 29, 2007, M.S.'s parents obtained legal custody of D and moved to Florida. They transferred A.C. and A.R. to their paternal aunt, V.R. After M.S.'s second stay at Straight and Narrow, DYFS reunited M.S. with A.C. and A.R.
Before leaving the program, Dr. Donna LoBiondo conducted a psychological evaluation of M.S. In Dr. LoBiondo's opinion "M.S.'s most glaring obstacle to safe and effective parenting is her drug addiction," which "resulted in considerable instability and change of caretakers for her children." Dr. Vivian Shnaidman conducted another psychiatric evaluation on December 10, 2007. She identified M.S.'s "significant substance abuse" problems as preventing appropriate parenting decisions. Without a structured setting, M.S.'s "past relapses and episodes of poor judgment" demonstrated that "at some point" she would "return to abusing drugs." Consequently, M.S.'s success largely depended on "her willingness to remain substance-free."
M.S. later transferred to Choices, an intensive outpatient program. After Choices discharged M.S. on February 7, 2008 for non-compliance, she moved into a "transitional housing program," at Amity Park.
In March of 2008, M.S. gave custody of A.R. and A.C. to V.R. because she wanted to surrender for outstanding warrants. Despite the warrants, M.S. was not incarcerated. Nevertheless, M.S. refused to take the children back. The children have remained in V.R.'s care since.
M.S. tested positive for marijuana nine days after placing the children with V.R. A month later, M.S. reported to Amity Park that she was being physically assaulted by her boyfriend, W.M., whom she had allowed into her apartment against regulations. During this incident, Amity Park officials found that M.S. had damaged her apartment and possessed liquor. Amity Park terminated her for these violations on April 30, 2008. M.S. obtained a temporary restraining order against W.M. on June 1, 2008. Nevertheless, the two continued their relationship, appearing together five months later to apply for temporary assistance.
In July of 2008, DYFS referred M.S. to outpatient treatment. After initially refusing to attend, M.S. agreed to an intake appointment. The program denied admission because M.S. misrepresented her history of drug use.
During this period, M.S. had visitations with the children at the Adoption House. Adoption House terminated these visits after M.S. missed three consecutive visits. During M.S.'s most recent evaluation with Dr. Shnaidman on August 6, 2008, the doctor recommended that DYFS "identify appropriate family members who can commit to long-term involvement with [M.S.] and her children." In October 2009, during the pendency of this termination proceeding, M.S. moved to Florida without her children.
On appeal, M.S. contends that:
THE TRIAL COURT'S DENIAL OF APPELLANT'S RENEWED APPLICATION FOR DYFS TO PAY FOR HER TRANSPORTATION FROM FLORIDA TO ATTEND THE TRIAL PROCEEDINGS VIOLATED HER FUNDAMENTAL DUE PROCESS RIGHT TO A FAIR TRIAL.
M.S. contends that conducting the trial without her presence denied her due process rights as elucidated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976). We disagree.
Judge Hayden denied two of M.S.'s requests for DYFS to pay for her transportation to New Jersey because M.S. had not substantiated her living arrangements and rehabilitation or demonstrated the necessary "extraordinary circumstances." Instead, the judge explained that M.S. had simply failed to prepare or cooperate in any way for trial. If, as M.S. argued, she was sober, employed and living with her parents, her failure to save the money to pay for her transportation was "really not an extraordinary reason."
We review the constitutional sufficiency of trial procedures pursuant to an abuse of discretion standard. N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 468 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004). To the extent that such a decision misapprehends the relevant law, however, no deference is appropriate. Manalapan Realty v. Twp. of Manalapan, 140 N.J. 366, 378 (1995).
The Fourteenth Amendment of the United States Constitution provides in §1 that no state shall "deprive any person of life, liberty, or property, without due process of law." The fundamental tenet of due process is that the State must afford parties "notice and an opportunity to be heard." In re Registrant, C.A., 146 N.J. 71, 94 (1996). Because there are no bright-line rules to judge the constitutionality of a disputed ...