On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-111-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011 -
Before Judges Carchman, Graves, and Waugh.
Defendants M.V. (Mary) and J.Z. (James) appeal from a March 11, 2010 judgment of the Family Part terminating their parental rights to their child, X.Z. (Xena), and awarding guardianship to the New Jersey Division of Youth and Family Services (Division).*fn1
We discern the following facts and procedural history from the record.
Mary gave birth to Xena on March 18, 2008. Despite initial denials, James was determined to be Xena's father. The Division began its involvement with this family on June 18, 2008, when it received a referral from the Union City Police alleging that James had physically assaulted Mary at a Burger King. According to the referral, James struck Mary, threw soda in her face, and kicked the baby stroller in which three-month-old Xena was sitting. The police investigation concluded that James had become jealous when other men talked to Mary in the restaurant. James was arrested for simple assault. Mary subsequently refused to press charges, claiming that "nothing had happened." She denied that James threw a drink on her or that their relationship involved domestic violence.
When the Division's worker interviewed James, he denied that he was Xena's biological father. Despite the fact that he was trembling, unable to stand straight, and smelled of alcohol, James denied that he had been drinking. He eventually admitted that he had consumed six to eight beers that day, while he was baby-sitting Xena.
Upon further investigation, the Division learned that Mary lost her housing in April 2008 and had been staying overnight on the street, in parks, and at different motels. She reported spending several hours a day at Burger King for shelter. At the time of the Division's investigation, Mary did not have a key for a motel or funds to secure a room. When asked whether she had sufficient food to give Xena for the night, she showed the caseworker a container containing enough formula for one more bottle. She was hoping James would give her money.
Initially, Mary refused the Division's offer to place her and Xena in a shelter for the night. She then changed her mind and consented to a safety plan, which included spending the night at a shelter and going to a store with the caseworker to purchase supplies for herself and the baby on the following day.
The next day, the caseworker brought Mary to the county welfare office so that she could apply for assistance. Mary was unable to complete all of the paperwork that day and was instructed to return the following day. When Mary and the caseworker returned, Mary refused to provide information necessary to complete the application for assistance. A worker explained to Mary that her refusal to cooperate would prevent her from obtaining welfare services. Mary wrote a statement in Spanish that a worker translated to say: "I don't want because he doesn't want child support."
Because Mary refused to cooperate with the welfare office to obtain the basic resources required to care for Xena, the Division effectuated an emergency removal on June 20, 2008. Xena was placed with a foster family.
On June 24, 2008, the Division filed a complaint for custody, and sought an order to show cause (OTSC). The Family Court judge found that the emergency removal of Xena was proper and in her best interests, and issued the OTSC. The order required Mary to cooperate with the welfare office in applying for assistance.
Both Mary and James appeared at the application for the OTSC. James informed the caseworker that he was expecting to receive a $1500 check, and that he would obtain an apartment for the family. In the meantime, he was living with relatives, and Mary was living with a friend.
On June 27, 2008, a caseworker visited Xena at the home of her foster family. The worker observed that Xena was happy and active, and that her foster home was well-kept.
On July 15, 2008, James attended his first visitation with Xena following the child's removal. The visitation was also scheduled for Mary, but she did not attend. James informed the worker that he did not have a permanent residence and was staying with his cousin and at different hotels. He explained that his current employment involved placing signs along highways. He stated his weekly salary was $300 when he worked on a full-time basis, but that he was not consistently working full-time due to the poor economy. He asserted that he was a legal resident of the United States, but did not know his social security number.
When asked about his relationship with Mary, James explained that, although they were still seeing each other, it was "not serious," but he also asserted that "he would like to settle in with her and their daughter in an apartment."
Finally, he explained to the caseworker that he had an aunt who might be willing to care for Xena until Mary and James were able to resume custody, and agreed to provide the aunt's contact information at the next visit. The caseworker advised James that if he and Mary were unable to provide permanency and stability for Xena in twelve to fifteen months, the Division would consider seeking termination of their parental rights.
On July 18, 2008, caseworkers again visited Xena at her foster parents' home. The foster parents told the caseworker that, while they hoped Xena's parents could get back on their feet, they would be willing to adopt the child.
Mary attended her first visit with Xena on July 22, 2008. She informed the Division's worker that she did not have a permanent residence and was staying at a motel in North Bergen. She also told the worker that she was earning $150 per week cleaning one house. She asserted that she was a legal resident and provided her social security number.
When asked about her relationship with James, Mary stated that they had not seen each other for two weeks, but that they were "serious." She asked the worker if the Division could provide "services dealing with aggressive behavior toward her." The worker advised her that North Hudson Community Action Program (NHCAP) offers domestic violence classes for women and men. Mary expressed an interest in the classes.
The caseworker inquired about family members who might be able to take
care of Xena. The caseworker told Mary that the Division had contacted
her adopted sister, M.V. (Melissa), in regard to fostering Xena, but
that Melissa had declined in a letter dated July 28, 2008, stating she
did not have time for a responsibility of that magnitude.*fn2
The worker had also contacted Mary's brother, but he
responded that he could not care for Xena because he is in poor
health. Mary told the worker that she already knew that her family
would be unable to help and that she knew of nobody else who she would
trust with her daughter.
The caseworker explained to Mary that termination would be considered if she and James did not attain permanency and stability in twelve to fifteen months. The worker then addressed the possibility that Mary might be pregnant. The worker referred Mary to NHCAP so that she could obtain prenatal care if necessary. The caseworker's contact sheets indicate that Mary continually received health care at NHCAP, but do not indicate that she was pregnant.*fn3
On July 29, the judge heard the return on the order to show cause. She continued custody of Xena with the Division and ordered Mary and James to submit to psychological evaluations and comply with domestic violence counseling. She also ordered James to attend intensive anger management classes and Mary to attend job training.
James visited Xena on August 1, 2008. Both parents attended a visit on August 26, but arrived over an hour late. James explained that they were late because he had broken his leg. At that time, the worker reminded them of the scheduled dates for domestic violence classes and psychological evaluations.
During the visit, the worker heard James curse at Mary when she briefly walked away from them. When the worker told him to compose himself, he said he did "not want anything to do with [Mary] and she could go where ever she chooses but to leave him alone." A substance abuse referral was also completed for James at that visit, and he was informed that his evaluation was scheduled for September 2.
On September 2, 2008, James failed to attend his evaluation. Both James and Mary also failed to attend a scheduled visit with Xena. The assessment was rescheduled for September 8, but James again failed to attend.
On September 9, 2008, Mary and her adult daughter, A.C. (Alice), visited Xena. During the visit, the caseworker reminded Mary that a Family Team Meeting was scheduled for September 19, 2008, and that her psychological evaluation was scheduled for October 3, 2008.
The caseworker told Mary that James had missed his second drug evaluation appointment and asked if James did "any other illicit drugs." Mary "stayed quiet and then said it was very possible." Mary then began to cry and told the worker that she missed her visit with Xena last week because James would not allow her to go. She also told the worker that James sold her social security card, green card, and other identification for $100. The worker directed Mary to file a police report regarding the incident and provided a list of shelters she could go to for domestic violence.
On September 16, James again missed his drug assessment, and both he and Mary missed another scheduled visit. On September 19, 2008, Mary called and left a message explaining that she was not feeling well and could not attend the scheduled Family Team Meeting. The Division conducted the meeting, but only the foster parents were in attendance.
At the meeting, the foster parents again expressed their hope that the parents would work things out, but said they were open to the idea of adoption. Case Practice Specialist Sonia Alonso also requested that the caseworker further explore the possibility of Mary's daughter, Alice, as a placement option. Although Alice had advised the caseworker numerous times that she was not able to care for Xena due to her own involvement with the welfare system and her plans to move to Massachusetts, the caseworker agreed to further explore this possibility.
On September 25, 2008, Mary was scheduled to begin domestic violence classes at 6:00 p.m. She arrived at the location at 3:00 p.m. A clinician told her to come back at 6:00 for the session, but Mary did not return. Because Mary did not have a working phone, a caseworker tried to contact Mary by leaving a message with Alice. Mary did not respond.
On September 27, 2008, Mary called to confirm her scheduled visit with Xena for the following day, but nevertheless failed to attend the visit. The Division had provided her with a bus pass and made her aware of the transportation schedule. On September 30, 2008, Mary missed another visit with Xena because she overslept. On this same day, a worker enrolled Mary in a parenting class which was scheduled to start on October 30, 2008.
Mary and James both missed their psychological evaluations, which had been scheduled for October 2 and October 3 respectively. Mary attended a visit with Xena on October 7, 2008, but missed a scheduled visit and court hearing on October 14, 2008.
At the court hearing on October 14, the judge determined that Mary had placed Xena at risk of harm due to her lack of housing and "failure to cooperate with the Division and [the] Hudson County Welfare Office in order to obtain stable housing."
Mary attended a visit on October 21, 2008. At that time, Mary told the caseworker that she had a temporary place to stay, but was not receiving any income. She also had not applied for welfare, as she had yet to obtain a new social security card. Mary stated that she forgot about her scheduled psychological evaluation in October. The caseworker advised her that it was rescheduled for November 22, 2008. The caseworker also provided Mary with a list of homeless shelters for victims of domestic violence and directed her to the Social Security office. Mary told the worker that she was no longer with James and had not seen him for weeks. She believed he did not want to be involved with the Division for fear he would be incarcerated again.
Mary missed her scheduled visit with Xena the following week on October 28, 2008, but attended a five month review meeting on November 10, 2008. She brought her sister Melissa and Melissa's husband. Melissa explained that she could not be a foster resource for Xena because her life was "extremely hectic," but that her mother might be willing to help. Melissa also told the Division that she intended to take Mary to Reading, Pennsylvania, to help her start a new life. She also intended to help her get her legal documents back from the person to whom James sold them. The Division explained that although the Division's plan was still reunification with Mary, they were simultaneously considering adoption by the foster parents if no other family resource could be found.
November 12, 2008, Mary attended a visit and was accompanied by Melissa and her mother. Xena was teething and started crying. According to the worker, Mary "could not deal with her" and handed the child to Melissa. Later that day, Mary left New Jersey to live with Melissa in Pennsylvania. She also retrieved her stolen identification. The following day, the Division sent Mary information regarding application for welfare in Pennsylvania.
On November 22, 2008, Dr. Manuel A. Iser conducted a psychological evaluation of Mary. Iser recommended that she engage in parenting skills classes and individual psychotherapy, and also that she secure an appropriate living environment and engage in a program for victims of domestic violence. He did not recommend reunification at that time.
In December 2008, Mary left her sister's home and returned to New Jersey. She told the Division that she was living with different friends and acquaintances, but refused to provide any information about the friends. She also said that she was working at a factory in the Bronx, but refused to provide further information.
The Division contacted Mary's daughter Alice in mid-October 2008 about serving as a placement option. Alice again responded that she was unable to care for Xena because she did not have the space, the financial resources, or time to assume that responsibility. Based on the renewed refusal, the Division issued a relative rule-out letter to Alice on December 31, 2008.
A compliance review hearing was held on January 13, 2009. Mary appeared, but James did not. The judge ordered that James attend substance abuse treatment for alcohol abuse and anger management classes. She ordered Mary to comply with domestic violence counseling, parenting skills and work-force training, and to obtain welfare and explore domestic violence shelters.
In February 2009, Mary provided the Division with documentation indicating that she obtained welfare assistance. She received food stamps in the amount of $263.59, $289 in cash, and her housing application was pending. Mary informed the caseworker that she was attending parenting classes, which conflicted with her scheduled domestic violence classes. Mary and the caseworker ...