On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-258-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2010
Before Judges Rodriguez, Grall and LeWinn.
Defendant is the natural mother of fraternal twins, A.J.M.W. and W.K.A.W., born in March 2006. She appeals from the May 18, 2009 judgment terminating her parental rights to the children and awarding guardianship to the Division of Youth and Family Services (DYFS) to consent to their adoption. The parental rights of the children's father, H.B., were also terminated in the same judgment; H.B., however, has not appealed.
Defendant grew up in Chicago, Illinois, and lived in the custody of her maternal aunt, D.L., whom defendant described as a drug abuser and prostitute, and who verbally and physically abused defendant. As a result, defendant lived in a series of foster homes from the age of fifteen to twenty-one. As a teenager, defendant was diagnosed with bipolar disorder and treated with various medications. During her troubled teenage years, she used marijuana, drank alcohol and attempted suicide twice, leading to a psychiatric hospitalization.
Defendant came to New Jersey when she was twenty-three years old and became involved with H.B. She claims to have conceived the twins when H.B. raped her. Defendant never spoke to H.B. again after the rape. During her pregnancy, defendant moved to a shelter; she was unemployed and relied upon welfare, food stamps and Medicaid for support.
At the time of the twins' births, defendant tested positive for marijuana at the hospital. Nonetheless, she was discharged from the hospital with the infants in her custody; she returned to the shelter where she had previously lived and remained there until July 2006. At that time she moved into her own apartment with the understanding that New Jersey's Temporary Rental Assistance program (TRA) would pay her rent. TRA never paid the rent, however, and, although defendant was briefly employed during this period and was receiving welfare benefits of $920 per month, she was unable to pay the rent and was ultimately evicted.
Defendant became involved in a relationship with J.K. at this time and, at the time of her eviction, she was pregnant with his child. They separated during the pregnancy and defendant moved in with her maternal aunt, D.L., who had relocated to New Jersey. D.L., who continued to have her own problems with drug abuse, ejected defendant and the twins from her apartment shortly afterwards. Defendant and the twins then moved into another shelter.
On March 26, 2007, DYFS received a referral from a welfare board employee stating that the twins were "dirty and smelly," and that defendant appeared to be abusing drugs. Upon investigation, however, this report was deemed unfounded.
Approximately one week later, on April 3, 2007, defendant took the twins to the hospital for treatment of ear infections. A hospital social worker contacted DYFS to report that defendant, who was now five months pregnant with J.K.'s child, had stated that she was overwhelmed in caring for the twins and that she intended to give custody of her unborn child to J.K. The social worker further reported that defendant and the children "seemed extremely hungry." In the social worker's opinion, defendant was "mentally [u]nstable and was not able to care for the children[,]" and posed "a high risk of harm" to them.
DYFS caseworker Larissa Richardson responded to the hospital and spoke to defendant who stated that she could not and did not want to care for the children at that time, and asked that the twins be placed in foster care until she could "get herself together." DYFS placed the children with one foster family and then, a few weeks later, with another family which has continued to have custody of the children up to the present and wishes to adopt them.
The trial judge ordered defendant to submit to a urine screen and a psychological evaluation, and to attend parenting classes. At her screening, defendant tested positive for marijuana and, as a result, was referred for a substance abuse assessment.
Dr. Leslie Trott conducted a psychological evaluation of defendant on April 9, 2007, and found her to be emotionally immature, irresponsible and not motivated to care for herself or her children. Trott could not rule out that defendant "suffers from a most serious psychological illness, including personality disorder, depression or thought process [dis]order. It appears that her judgment is impaired . . . [and] her emotional distress and impaired competence lead to the realization that in her care her twins are at risk." Trott recommended that defendant undergo a psychiatric evaluation and that she be referred for job training.
In May 2007, DYFS caseworker Derrick Harris referred defendant for parenting and anger management classes and individual therapy. Harris also referred defendant to a vocational training agency, provided her with transportation, arranged regular supervised visitation with the children, and gave her letters to present to the welfare board for housing assistance.
Defendant proffered her aunt, D.L., as well as D.L.'s live-in female friend, S.R., as possible relative resources. D.L. was ruled out because she had a prior criminal history; S.R was ruled out after defendant rescinded her request that she be considered as a placement possibility. Notwithstanding DYFS's efforts to assist defendant in finding housing, in June 2007 defendant chose to move back in with D.L.
Dr. Alexander Iofin conducted a psychiatric evaluation on June 11, 2007, during which defendant admitted that she had received outpatient psychiatric care as a minor and had been prescribed medication for bipolar disorder; defendant stated that she stopped taking her medicine some time ago.
Iofin concluded that the defendant was mildly depressed, had problems with impulse control and had an adjustment disorder, as well as post-traumatic stress disorder. He recommended individual and group therapy as well as medication, and that defendant be enrolled in a program for mentally ill chemical abusers (a "MICA" program) and receive treatment at a mental health clinic.
Defendant requested that DYFS place her in a Mommy and Me program which would have provided her a place to live with her children while receiving supervision and therapy. Harris sought Iofin's opinion as to whether such a program would be suitable;
after reviewing defendant's previous psychiatric records, Iofin opined that such a program would be appropriate provided it had twenty-four hour supervision and psychiatric care. Harris searched for such a program, but could not locate one in New Jersey.
During this period, Harris referred defendant to Family Connections for MICA services, pursuant to Iofin's recommendations. Defendant was admitted into the program, but her attendance was poor not withstanding a judge order requiring her to participate.
In September 2007, defendant was evaluated by Dr. Bruce Friedman, a psychiatrist retained by her attorney. Friedman concluded that defendant no longer needed a MICA program and found no evidence that she suffered from a bipolar disorder, although he did diagnose her with post-traumatic stress and attention deficit disorders.
Charles Covington, a substance abuse counselor who worked with defendant, wrote to Harris on October 11, 2007, to advise of defendant's progress and to express his opinion that, while defendant needed to continue in some form of therapy, she no longer needed substance abuse services.
Defendant gave birth to J.K.'s daughter in August 2007, and DYFS immediately took custody of the infant. Defendant continued living with D.L. until September 2007, at which time she became employed as a certified nursing assistant.
Defendant withdrew her request for placement in a Mommy and Me program at this time, because she had found housing and employment. Between October and December 2007, however, defendant lost her employment and gave up her apartment following a dispute with her landlord. In February 2008, defendant moved into a shelter in Newark for single men and women. At this time defendant also began attending a MICA program five days a week at New Hope. She obtained and lost two jobs between February and June 2008.
Defendant encountered problems and missed numerous days of therapy at the New Hope program; she complained to Harris that it was "too hard." Her case manager at New Hope stated that he believed the program was not a priority for defendant. While at New Hope, defendant denied having any mental illness, displayed poor problem solving and anger management ...