NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2011 - Decided Before Judges Reisner and Sabatino.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-127-09.
Yvonne Smith Segars, Public Defender, attorney for appellant S.R.M. (Anthony J. Vecchio, Designated Counsel, of counsel and on the brief).
Yvonne Smith Segars, Public Defender, attorney for appellant G.F. (William J. Sweeney, Designated Counsel, on the brief). Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jody A. Carbone, Deputy Attorney General, on the brief).
Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor G.N.F. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
After a three-day guardianship trial, the parental rights of defendants S.R.M. and G.F., the biological parents of G.N.F. ("Alicia"*fn1 ), were terminated by the Family Part pursuant to N.J.S.A. 30:4C-15.1(a). Defendants have respectively appealed that final judgment, principally alleging that the trial court's decision was contrary to the child's best interests; that the trial court and the Division of Youth and Family Services ("DYFS" or "the Division") failed to adequately explore alternatives to termination, in particular the possible placement with the child's paternal grandmother in South Carolina; that the court's decision was premature; and that the court committed other procedural and substantive errors. We reject defendants' arguments and affirm.
The Division's proofs at trial, which were not rebutted by any defense testimony, adduced the following pertinent facts and circumstances. On the whole, they present a scenario in which Alicia was removed from her mother, S.R.M., at birth because S.R.M. was addicted to crack cocaine and heroin, had used those illegal drugs throughout her pregnancy, and was unable to provide Alicia with a safe home and a stable environment. The child's father, G.F., was also addicted to drugs, resulting in his incarceration for much of Alicia's life to date. Despite reasonable efforts by the Division to offer services to defendants, they failed to take advantage of those services and, in fact, virtually disappeared for almost sixteen months during their daughter's first two years. Meanwhile, Alicia has bonded with and has been well-cared for by her foster parents, who now wish to adopt her. The sole expert testimony presented at trial confirmed that it is in Alicia's best interests to remain with her foster parents and that a placement with her paternal grandmother in South Carolina, as suggested by defendants, would jeopardize her well-being.
Alicia was born in January 2008. Four months prior to her delivery, Alicia's mother, S.R.M., had come to the hospital with chest and abdominal pain. S.R.M., who was then twenty-three weeks pregnant and homeless, admitted that she had been smoking crack cocaine during her pregnancy and, in fact, she tested positive at the hospital for opiates. By S.R.M.'s account, she had been "living in the street" with G.F. since returning to New Jersey from Texas two months earlier. According to the hospital's discharge planning form, "DYFS [would] make a report, but [could not] intervene at [that] time. [S.R.M.] [was to] be given a bus ticket and a shelter list."
In early January 2008, the Division received a second referral from the hospital. This time, "[s]ocial service intervention was required because S.R.M. had an outside delivery, the baby was admitted to the NICU, and because [S.R.M.] tested positive for substance abuse." S.R.M. later reported to hospital staff that "she did not realize that she was in labor as she did not feel pain." Upon arrival at the hospital, the baby's urine tested positive for cocaine. S.R.M. reported that she had last used cocaine at 10:00 p.m. on the night before Alicia's birth. At the hospital, S.R.M. tested positive for cocaine and heroin and she "appeared to be under the influence of a substance." S.R.M.'s medical records confirmed her repeated history of drug use before and during her pregnancy.
Upon her arrival at the hospital, Alicia was admitted to the intensive care nursery. Less than a week later, she was transferred to the normal newborn nursery. The Division petitioned for, and was granted, temporary custody of Alicia on January 9, 2008, pursuant to an order to show cause. Alicia was discharged to a DYFS worker on January 11, 2008 and placed in foster care.
The Division held a family team meeting on March 12, 2008, attempting to develop a plan to promote, at that time, potential reunification of Alicia with her birth parents, S.R.M. and G.F. S.R.M. and G.F. both visited with Alicia that day. However, both S.R.M. and G.F. thereafter ceased contact with the Division for over a year. In the meantime, the Division brought an action in the Family Part alleging that Alicia had been abused and neglected.
In May 2008, the Family Part conducted a fact-finding hearing. At that hearing, the court substantiated the Division's allegations of abuse and neglect. In particular, the court noted that both S.R.M. and Alicia had tested positive for cocaine at the child's birth, that S.R.M. had no appropriate housing for the child, and that G.F. had not presented himself as an alternative and able caretaker.
On February 6, 2009, thirteen months after Alicia was born, the Division filed a complaint for guardianship and termination of parental rights as to both defendants. In the meantime, Alicia was evaluated by an early intervention team on April 18, 2009. The evaluation team determined that Alicia was not eligible for services, as she was "demonstrating age appropriate skills in all areas of her development."
On May 4, 2009, S.R.M. contacted the Division, advising that she had been incarcerated from March 25, 2009 through May 1, 2009. During that conversation, S.R.M. was notified that a hearing in the Family Part was scheduled on May 13, 2009. S.R.M. failed to attend that hearing. However, G.F., who was then incarcerated, was brought to court for the May 13 hearing. He testified at that time that he had been living with his mother for the past six months, and that he expected to be released from custody the following day. The court ordered G.F. to meet with a DYFS representative two days later on May 15, 2009. However, G.F. failed to appear that day, despite the court's directive.
S.R.M. first appeared before the Family Part on June 3, 2009, at which time she claimed that she had no knowledge of the pending litigation. During that hearing, she admitted that she had used both cocaine and heroin the day before and she tested positive for both substances. S.R.M. suggested that Alicia's paternal grandmother in South Carolina, C.S., might serve as a potential care provider. However, the Division had already ruled C.S. out a year earlier, due to a physical disability that C.S. had previously reported.
Another hearing was conducted in the Family Part on July 15, 2009, which both S.R.M. and G.F. attended. Shortly after that hearing, C.S. and G.F. visited with Alicia. It was the first time that C.S. had ever met Alicia and only the second time that G.F. had been with her.
At an ensuing hearing, on July 21, 2009, C.S. testified that her first contact with DYFS was in 2009; that she had moved to South Carolina approximately five years earlier; that prior to 2005, she lived in Newark; and that she had a disability that prevents her from lifting more than "a certain amount of weight." C.S.'s present husband also testified. He stated that he lived in Newark, that he was going to move to South Carolina to live with C.S., that he couldn't stand for long periods, and that he required some assistance to walk.
A DYFS caseworker testified at the July 21, 2009 hearing that C.S. had indicated to him that G.F. was not aware of the severity of her disability, that she was unable to lift more than ten pounds, and that she had previously told a caseworker that she was disabled. He confirmed that a "rule-out" letter had been sent by DYFS to C.S.'s Newark address on May 28, 2008. S.R.M. and G.F. both represented to the court that they would attend drug treatment in South Carolina. S.R.M. cancelled the visit with Alicia that had been scheduled that day, because they were apparently relocating to South Carolina the following day. Neither S.R.M. nor G.F. attended the court-ordered drug screening that day.
On September 21, 2009, both S.R.M. and G.F. attended a psychological and bonding evaluation with the Division's mental health expert, Mark Singer, Ed.D., a licensed psychologist. Two days later, on September 23, 2009, both parents visited with Alicia. During that visit, they each admitted to the DYFS caseworker that they were not attending substance abuse treatment in South Carolina.
On October 14, 2009, S.R.M. requested a visit with Alicia, which was arranged. S.R.M. told the caseworker that there were no substance abuse programs in South Carolina. She also stated that the last time both she and G.F. had used drugs was in August 2009.
After a subsequent hearing on October 19, 2009, G.F. tested positive for marijuana and morphine. The Division thereupon provided S.R.M. and G.F. with a list of substance abuse programs; G.F. indicated that he would contact them upon his return to South Carolina. The DYFS caseworker arranged for a visit with Alicia that day. However, G.F. failed to attend that visit and Alicia visited with S.R.M. only.
At another hearing on January 25, 2010, G.F. tested positive for cocaine and methadone. After that hearing, S.R.M., G.F., and C.S. visited with Alicia. Their next visit with her was scheduled for January 27, 2010. G.F. again tested positive for opiates and cocaine at a substance evaluation on January 27, 2010; G.F. was recommended for intensive outpatient treatment. S.R.M. also tested positive at that time for opiates and cocaine; she was recommended for partial hospitalization. S.R.M. ...