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New Jersey Division of Youth and Family Services v. R.B

May 9, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-52-10.

Per curiam.



Argued April 4, 2011

Before Judges Reisner, Sabatino, and Ostrer.

After a Title 30 guardianship trial, the trial court terminated the parental rights of R.B. to her biological daughter, E.A.B. ("Emma").*fn1 At the same time, the trial court terminated the parental rights of Emma's biological father, E.A. Based upon the evidence presented, the trial judge concluded that the Division of Youth and Family Services ("DYFS" or "the Division") had established all four criteria necessary for termination under N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence.

R.B. now appeals, principally arguing that the Division failed to make reasonable efforts to provide her with services, and that the termination of her parental rights was premature, given the fact that Emma is now only two years of age. E.A., the child's father, has not appealed.*fn2

For the reasons that follow, and applying our limited standard of appellate review, we affirm the June 30, 2010 final judgment of guardianship.


The record developed at trial reveals the following sequence of relevant events and circumstances.

Defendant is the biological mother of four children, three of whom were removed from her care prior to the birth of Emma, the fourth child. The Division initially became involved with defendant in January 2001, when it received a referral reporting that she had given birth to a pre-term infant girl, A.A.B., who tested positive for cocaine.

In November 2003, the Division received another referral about defendant, indicating that she had given birth to a second daughter, H.A.B., and that, at the time of delivery, defendant had tested positive for cocaine and opiates. Two years later, on November 30, 2005, a judgment for Kinship Legal Guardianship ("KLG") was entered, appointing defendant's mother as the Kinship Legal Guardian for her first two children.

The Division received a third referral involving defendant in December 2007. That referral indicated that defendant had given birth to a full-term baby girl, J.C.B. ("Jaime"), who tested positive for opiates. Jaime was placed with defendant's brother, E.B. and his wife, C.B.

On May 9, 2009, defendant's parental rights to Jaime were terminated at the request of the Division. Although defendant did not appear at the Family Part hearing and the termination was entered by default, defendant represented that she had made a designated surrender to E.B. and C.B. to allow them to adopt Jaime. Seven months later, on November 21, 2009, Jaime's adoption by E.B. and C.B. was finalized.

The Division once again became involved with defendant, upon receiving another referral after she gave birth to her fourth child, Emma. During the early morning hours of April 30, 2009, Emma was born at Newark Beth Israel Medical Center. Emma was premature and weighed five pounds, four ounces. Shortly after giving birth to Emma, defendant's urine tested positive for heroin, cocaine, and THC.

Defendant stated that she had last used heroin at 1:00 p.m. on April 29, 2009. She admitted to sniffing heroin every day, or every other day, throughout the prior year. Defendant was referred for a social work consultation, after which her case was transferred to the Division and a "social hold" was placed on Emma pending the Division's investigation. During the initial consultation with defendant on April 30, 2009, the social worker noted that defendant "requested to go to [a] long-term [drug] treatment facility."

Although Emma tested positive for cocaine and heroin at birth, she did not appear to exhibit symptoms of withdrawal. Consequently, Emma was medically cleared for discharge from the hospital on May 6, 2009. Anticipating Emma's discharge, a DYFS caseworker personally visited defendant's home the day before. The caseworker went there to inform defendant that a hearing on custody was to take place in the Family Part on May 6, 2009. Defendant apparently told the caseworker that both she and her family would attend the hearing.

The initial custody hearing was held, as anticipated, on May 6, 2009. However, defendant did not appear. At that hearing, the Division petitioned for, and was granted, custody of Emma. A subsequent DYFS contact sheet, dated May 11, 2009, indicates that "[t]he child's mother [defendant] has declined participation in the Case Plan. She has refused services and contact with the Division Worker." Six days after the Division was granted custody, Emma was discharged from the hospital and she was placed in foster care.

Three weeks later, on June 5, 2009, Emma was placed in the home of her paternal cousin, S.A. ("Sharon"). The family team meeting referral from that day noted that Emma had been placed with a paternal cousin, and that "[b]oth parents continue to use drugs."

Six days later, on June 11, 2009, a fact-finding hearing was held in the Family Part. Neither defendant nor Emma's father appeared. At that hearing, the court determined, by clear and convincing evidence, that the parents had "abused or neglected [Emma] in that they exposed the child in utero to illegal drugs and accordingly the child tested positive at birth to [both] heroin and cocaine." The court further noted that "[n]either parent put forth a plan for the child."

Shortly thereafter, the Division requested an early intervention evaluation of Emma. That evaluation was performed on July 22, 2009. Emma's foster mother, Sharon, participated in the evaluation. She indicated that she did not have any concerns regarding Emma's development. The early intervention team agreed, concluding that Emma was "developing nicely," and therefore she was not in need of early intervention services.

Beginning in November 2009, defendant was offered weekly visitations with Emma, for one hour per visit. However, apparently due to her fluctuating work schedule, defendant was unable to participate in visitation at the scheduled times. As a result, the Division referred defendant to the Tri-City Visitation Program ("Tri-City"). Commencing in December 2009, defendant was scheduled by Tri-City for supervised visitation sessions on Saturday afternoons. Although defendant never complained about the visitation schedule, Tri-City reported that her attendance was "sporadic." According to the visitation reports from December 17, 2009 through May 29, 2009, only eight recorded visits appear to have taken place during that five-month time span. Defendant cancelled at least seven of the missed appointments, and in several instances she did not confirm the appointment in advance as required.

Defendant also was offered liberal opportunities to visit with Emma by the foster mother, Sharon. Defendant did not take advantage of Sharon's offer, preferring to visit with Emma elsewhere.

Meanwhile, the Division proceeded to seek termination of defendant's parental rights. A three-day guardianship trial was held in the Family Part in June 2010. The Division presented three witnesses at trial: Ashley Mystila, the caseworker for Emma and the former caseworker for Jaime; Elayne Weitz, Psy.D., a licensed psychologist; and Sharon, the foster mother.

Mystila testified that she was assigned responsibility for Emma in July 2009, eleven months before the trial. Mystila stated that in September 2009 she and defendant discussed the various inpatient services that defendant was receiving at a program known as Eva's Village. Those services included substance abuse group meetings and parenting classes. Mystila acknowledged that as of her first encounter with defendant, defendant had stated that she wanted to be a resource for Emma. On at least two occasions towards the end of her inpatient program at Eva's Village, defendant told Mystila that she wanted to go into a so-called "mommy-and-me" program. Although Mystila herself was not directly familiar with mommy-and-me programs, she had discussed the program with her supervisor.

Mystila recalled that defendant first expressed her desire to participate in a mommy-and-me program in approximately December 2009. Mystila testified that, initially, defendant was not considered suitable by the Division for a mommy-and-me program because she was still in active drug treatment. Mystila indicated that the mommy-and-me request was also discussed twice in May 2010. After her treatment ended, defendant again expressed some interest in a mommy-and-me program, but only to the extent that she gave Mystila the contact information for her new counselor at Eva's Village so that Mystila "could speak with her new counselor in getting the information for her to go into a mommy-and-me program." However, the Division did not consider the request at that time either, because defendant's final progress report from Eva's Village had indicated that she was leaving the program and that she was expecting to live with her parents.

After defendant left Eva's Village, defendant did not move in with her parents. Instead she moved in with a paramour, D.G., a former addict whom defendant had met at Eva's Village. Mystila stated that defendant had not allowed her access to assess their residence. Defendant told Mystila that the arrangement was temporary, and that she and the paramour were looking for a larger apartment.

Mystila confirmed that, as the situation unfolded, the Division's "permanency goal" for Emma became foster home adoption with Sharon. In her testimony, she explained the Division's reasons for adopting that goal as follows:

The Division feels like this goal is appropriate due to [defendant]'s high risk of relapse, also her lack of commitment that was shown in the sporadic visitation, as well as being offered liberal visitation, even throughout the duration of the case. [Defendant] has kind of displayed a pattern where she seeks recovery, gets herself into recovery, somehow links with a former drug-abusing boyfriend which ultimately leads to her relapse.

Mystila stated that defendant has not yet broken her pattern of relapse-and-recovery, and that her risk of relapse represents "an additional reason why the Division believes a mommy-and-me program would not be appropriate." Mystila perceived that defendant "hasn't expressed a dire need for the mommy-and-me program at this point. She [is] content with going to school and living with her paramour."

Mystila acknowledged that the reports that she received from Eva's Village showed that defendant was successfully progressing through the program. She also confirmed that the Division was satisfied with the services that defendant was receiving at Eva's Village.

Mystila agreed that Emma's father was not capable of taking care of Emma himself. According to Mystila, at the time of Emma's birth, her father asserted "that he was unaware of [defendant]'s drug use and [that] he was not referring himself as a resource at the time." Mystila testified that the father indicated to her that he was supportive of the Division's plan to place Emma with Sharon, although counsel stipulated at trial that ...

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