On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-0019-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Alvarez.
In these consolidated appeals, T.D., the mother, and D.H., the father, appeal from the January 11, 2010 judgment of guardianship terminating their parental rights to their son, J.H., and their daughter, A.H. J.H. was born on January 31, 2006, and we will refer to him in this opinion by the fictitious name "Johnny." A.H. was born on June 18, 2007, and we will refer to her in this opinion by the fictitious name "Amy."
Appellants argue that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of proving all four prongs of the best interests of the child test. The Division disagrees, and the Law Guardian, who supported termination in the trial court, joins the Division on appeal in urging us to affirm the termination order. We are satisfied from our review of the record that the Division presented sufficient evidence to support Judge Farber's finding that all four prongs were clearly and convincingly established. Therefore, we affirm.
DYFS initially became involved with the family in July 2006, when it received a referral indicating that both parents were using and selling drugs and not properly caring for Johnny, who was then six months old. Although DYFS found the allegations to be unfounded, it referred both parents for substance abuse evaluations, and they both provided negative urine screens. Due to incidents of domestic violence, T.D. signed a case plan in September 2006 agreeing to seek a restraining order against D.H. and also agreed to obtain suitable housing with the assistance of social services, to whom she was referred by DYFS.
However, T.D. and D.H. reconciled in October 2006 and took up residence with D.H.'s mother. In the ensuing weeks, D.H.'s mother and sister reported to the Division that they believed T.D. was using drugs and not properly caring for the baby. On November 2, 2006, a DYFS caseworker learned from Johnny's pediatrician that Johnny had only one immunization and was overdue for several others. In August, T.D. had reported to the Division that Johnny had been vomiting his food, but T.D. did not comply with the instructions she was given to follow up with this problem. On November 8, 2006, a DYFS caseworker met with T.D., Johnny and a nurse for consultation. T.D. was instructed to maintain a notebook to correlate what foods Johnny was given and when he vomited. The caseworker referred T.D. to Family Preservation Services (FPS) to assist her with this problem. FPS provided in-home counseling and parenting skills services to both parents. However, despite these efforts, T.D. failed to keep a scheduled appointment with the pediatrician on November 16, 2006.
On November 18, 2006, it was reported to the Division that T.D. had been arrested and was released on bail. According to D.H.'s mother, T.D. was using drugs, the place she was staying with Johnny lacked hot water and a refrigerator, and Johnny was sleeping on the couch. At about this time, D.H. had also been arrested and remained in custody on outstanding warrants.
A home visit confirmed the inadequate living accommodations. The caseworker also observed that the apartment was being heated with space heaters. She told T.D. they were unsafe. A follow-up visit to T.D. on November 20, 2006, revealed the same deficiencies in the living arrangements. The caseworker accompanied T.D. and Johnny to the pediatrician. The doctor told T.D. that she should be feeding Johnny formula five times a day, plus baby fruits and vegetables three times a day. Johnny exhibited signs of failure to thrive, and the doctor made referrals for blood work and chest x-rays. T.D. was again instructed to maintain a food log and record any vomiting or loose bowel movement episodes. A follow-up visit was scheduled for a week later.
On November 21, 2006, the caseworker arrived at T.D.'s apartment. Johnny was wearing only a diaper and lying on the couch next to T.D.'s teenage sister, who was smoking a cigarette. T.D. had not followed through to make arrangements for the blood work and x-ray. She had also not administered the medicine that had been prescribed for Johnny on November 6, 2006. There was still no heat in the apartment other than space heaters. DYFS determined that an immediate removal was necessary because Johnny's medical and environmental needs were not being met. The removal was accomplished pursuant to N.J.S.A. 9:6-8.29, and an order was entered to that effect on November 27, 2006. DYFS then had the results of a November 20, 2006 urine screen provided by T.D. that was positive for cocaine.
Both parents continued to use drugs. They were sporadic in attending substance abuse evaluations and tested positive from time to time for cocaine and opiates. On January 10, 2007, T.D., while five months pregnant with Amy, admitted she was then using drugs. D.H. also admitted to using crack cocaine at that time. Both parties were referred for treatment. T.D. was referred to Sunrise House, where she could move into inpatient treatment or a Mommy and Me program if warranted. In the ensuing months, both parents participated in drug counseling. They were living in a motel due to an electricity problem at their apartment. D.H. was also referred for anger management counseling and couples counseling with T.D.
T.D. gave birth to Amy on June 18, 2007. Drug screens were negative for mother and daughter. For this reason and because both parents were cooperating with services, the Division authorized Amy to be released into her parents' custody. Johnny was also returned to their custody on August 16, 2007. The Division arranged for FPS workers to be in the home to provide assistance.
On October 3, 2007, D.H. tested positive for morphine and opiates. On October 15, 2007, T.D. tested positive for opiates. Appellants provided several unconvincing explanations for these test results. They said, for example, that legal prescription drugs or the consumption of a poppy seed bagel were the cause.
On October 25, 2007, neither parent appeared for a scheduled court review. The court ordered that both parents complete substance abuse evaluations and follow all treatment recommendations, submit to random urine screens, attend counseling at the Center for Evaluation and Counseling (CEC), and insure that the children were seen by their pediatrician for all well checks and sick visits.
On November 20, 2007, T.D. tested positive for cocaine, and a day later D.H. tested positive for morphine and opiates. D.H. blamed his results on taking Theraflu and Robitussin DM, but DYFS confirmed that neither medication would cause such results.
On December 7, 2007, the Division filed an amended order to show cause seeking removal of both children. The court entered the order and the children were removed on that date. After a brief stay in a temporary foster placement, they were placed on December 12, 2007 with foster parents with whom they have remained ever since. These foster parents wish to adopt both children.
After several months in foster care, Johnny was diagnosed with an allergy to milk and dairy products, and to soy. He was placed on a special diet.
The Division referred the family for therapeutic supervised visitation. Both parents had weekly two-hour visitation with the children. They were both compliant and consistent with visitation, and acted appropriately with the children.
On January 17, 2008, T.D. began inpatient treatment at Sunrise House. However, on January 23, 2008, D.H. informed DYFS that T.D. was incarcerated. He also advised that he would start drug treatment at CEC on January 31, 2008, and that he had been attending Narcotics Anonymous meetings. However, on February 5, 2008, CEC informed DYFS that D.H. had not begun treatment. D.H. continued in his noncompliance, and CEC closed his case on February 27, 2008.
On March 18, 2008, a DYFS caseworker visited T.D. in jail. She promised that upon her release she would attend CEC for counseling, obtain employment, and attend substance abuse treatment. The caseworker explained to her the guidelines in the Adoption of Safe Families Act (ASFA), 42 U.S.C.A. § 675(5)(C) and (E), noting that Johnny had been in placement for thirteen months, and that T.D. would need to do the necessary work toward reunification promptly upon her release. The next day, the caseworker met with D.H. and also explained to him the ASFA requirements. He again said he would attend drug counseling at CEC.
T.D. was released from jail on April 30, 2008. A caseworker visited both parents on May 6, 2008. Both parents again agreed to participate in counseling and substance abuse treatment, but they remained noncompliant.
On June 3, 2008, DYFS filed a guardianship complaint against both parents. The court approved a concurrent plan of reunification with D.H. and termination of parental rights.
In the ensuing weeks, D.H. continued to be noncompliant with substance abuse treatment at CEC. In August 2008, both parents were incarcerated. When visited in the jail, T.D. told a caseworker she planned to request to enter a Mommy and Me program at her scheduled September 9 criminal court appearance. The caseworker advised her that DYFS would not recommend this based on the filing of the guardianship complaint. D.H. informed the caseworker that he had relapsed, planned to resolve his criminal charges, and would then embark on an inpatient program.
T.D. was released from jail in December 2008, and she entered an inpatient program at Integrity House as part of her compliance with drug court obligations. D.H. was released in January 2009, and he began outpatient treatment. Visitation resumed in January 2009.
D.H. was successfully discharged from outpatient treatment on March 9, 2009, and admitted into an aftercare program. He successfully completed the program on May 14, 2009. His urine screens through that time were negative.
T.D. completed the first phase of the Integrity House inpatient program and moved into the second phase transitional living program. However, she left the halfway house in June 2009, citing the presence of drugs and physical violence at or in the vicinity of the program. As a result, she was arrested on June 28, 2009 for violating probation, and she was returned to jail. The criminal court ordered her to return to Integrity House in August 2009, and when the guardianship trial began on October 19, 2009, she was living there. However, during the course of the trial, T.D. was administratively discharged from Integrity House for rule violations, her whereabouts became unknown, and a warrant was issued for her arrest. On October 15, 2009, four days before the guardianship trial began, D.H. tested positive for opiates. As a result, he was sanctioned with a seven-day incarceration in November 2009.
DYFS had explored relative placement options over the course of these events. It ruled out several family members for various reasons. All of this information was presented to the court at trial.
Three psychological experts testified at the trial, and their reports were received in evidence. The Division produced Dr. Mark Singer. The ...