On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-218-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Graves and Waugh.
Defendants N.K.C. and G.S. appeal from a judgment of the Family Part terminating their parental rights and granting guardianship to plaintiff Division of Youth and Family Services. (DYFS or The Division). On appeal, defendants assert that DYFS failed to establish the four-pronged test set forth in N.J.S.A. 30:4C-15.1 by clear and convincing evidence. In both her oral and written opinion of June 28, 2010, Judge Margaret M. Hayden determined that DYFS had met its burden and terminated defendants' parental rights. We affirm.
These are the facts adduced from the extensive record. The Division's involvement with N.K.C. began in 2005 when N.K.C. gave birth to a cocaine-positive child, C.C., who N.K.C. abducted from the hospital. The child was removed from N.K.C.'s care.*fn1
On October 29, 2007, N.K.C. gave birth to a second son, K.J.C. Although K.J.C. did not test positive for any illicit substances at birth, the Division nonetheless received a referral from a University Hospital social worker regarding K.J.C.'s birth due to N.K.C.'s abduction of C.C. two years earlier. The Division sent a special response unit to the hospital to investigate, and N.K.C. informed the Division that she was residing with her father and brother in East Orange. The Division determined that K.J.C. was safe and recommended continued supervision. K.J.C. was released to N.K.C., and she was discharged from the hospital. The Division arranged for a parent aide to assist N.K.C. at home.
On November 5, a Division investigator interviewed N.K.C. at her father's home where she resided with K.J.C. N.K.C. claimed she had been sober for approximately ten months. N.K.C. identified "Greg Roberts" as K.J.C.'s biological father. She stated that Roberts was not present at K.J.C.'s birth, was "in and out of her life," and could not be relied upon for support. She informed the investigator that Roberts' last place of residence was Newark but that she did not know his whereabouts at that time.
The Division referred N.K.C. for a substance abuse assessment, and she tested negative at that time. By December 2007, N.K.C. had moved out of her father's home and was residing in a shelter with K.J.C. N.K.C. informed her caseworker that she had been placed in transitional housing by her welfare caseworker. A few weeks later, she informed the Division that she was residing with a friend in Newark. The Division set up parenting classes to commence in February 2008.
On February 5, 2008, N.K.C.'s sister, T.C., called the Division and left a message stating that N.K.C. was "out in the street and was homeless." T.C. also stated that N.K.C. was "high off drugs" and "in the area of Lincoln Park." The Division learned that N.K.C. had ceased residing with her friend as of February 2. The Division contacted the Human Services Police, located N.K.C. on February 14, and learned she had been residing at Harmony House in Newark as of February 7.
Within a week, a Division case manager transported N.K.C. to a psychological evaluation with Mark Singer, Ed. D., who had previously examined N.K.C. because of the involvement with C.C. At the evaluation, N.K.C. identified "John Carter" as K.J.C.'s biological father. Singer concluded that although N.K.C. "has historically had difficulty parenting, the data obtained from [the] evaluation does not suggest that she poses an imminent threat to her son, [K.J.C.]." Singer recommended random drug screenings, parenting skills training, and individual psychotherapy.
N.K.C. began attending parenting classes through the Family Service Bureau (FSB) of Newark on February 19, 2008, which were scheduled to be completed on April 7, 2008. N.K.C. also attended a weekly group session for substance abuse through the FSB.
In April, the Division received a referral from Harmony House indicating that N.K.C. was intoxicated on April 4 and "began swinging at other residents as well as the security" and "had a knife." Witnesses observed N.K.C. throw K.J.C. on a bed. The Newark police were summoned and N.K.C. was taken to a relative's house with K.J.C. N.K.C. left Harmony House on April 10. On April 11, the Division located N.K.C. and K.J.C. at the Riviera Hotel, at which time N.K.C. agreed to go to the Division's office with the caseworker. At that time, it was determined that N.K.C. "did not have a stable home to live with [K.J.C.]," and neglect was substantiated based on the Harmony House incident. K.J.C. was removed from N.K.C.'s custody on April 11 and placed in foster care pursuant to a court order entered the same day.
N.K.C. missed parenting group classes on March 31, April 7, and April 14, 2008. An April 17 progress report indicated N.K.C. had tested negative on all four of the drug screens she had been administered, but that she had failed to attend counseling sessions after March 24. As a result of her "non-compliance and missed appointments," N.K.C. was terminated from group counseling.
In late April, N.K.C. contacted the Division to set up a visit with K.J.C. She told the caseworker she was living with "a friend," but refused to provide an address or any other information. N.K.C. attended a visit with K.J.C. on April 24. At that time, she completed a case plan, the goal of which was family reunification. N.K.C. informed the caseworker that she would begin residing in a boarding house the following week, to be paid for with money provided by "[K.J.C.]'s father." She agreed to provide the Division with her address the following week. In the interim, N.K.C. asked the caseworker to contact her at her father's address and phone number.
N.K.C. did not attend a scheduled May 1 visit with K.J.C. nor did she attend a scheduled court hearing. The judge found by clear and convincing evidence that N.K.C. "failed to provide safe, stable housing for K.J.C., failed to comply with court-ordered services, and failed to notify the Division of her change in location."
By May 2008, the Division had lost contact with N.K.C. Despite letters sent to her father's address and the intervention of Human Service Police, the Division was unable to establish contact with N.K.C.
On October 30, 2008, N.K.C. contacted the Division for the first time since late April 2008 and requested visitation with K.J.C. N.K.C. called the Division again on November 3 regarding visitation claiming that she was "staying with family down south and ha[d] come to New Jersey for a couple of days," and had no where to stay in New Jersey. She refused to provide the caseworker with any contact information and stated she would stay in contact. A visit was scheduled for the following Thursday. When the caseworker asked N.K.C. if she was using drugs at that time, N.K.C. replied "yes."
On November 6, 2008, both N.K.C. and G.S., K.J.C.'s father, attended a visit with K.J.C. At that time, N.K.C. admitted to using heroin and cocaine on a daily basis and to having used the prior day. The caseworker contacted a rehabilitation program, and N.K.C. completed the intake process over the phone. The Division scheduled a November 10 substance abuse evaluation, and N.K.C. stated that she would contact the Division on the following day. The caseworker also managed to obtain basic information about G.S., including his birth date and social security number, but N.K.C. stopped G.S. because he was "giving [the] worker too much information." G.S. stated that he lived "here and there." He also identified his sister, D.D. (Denise), and mother, D.D. (Dana), as placement options, but did not provide their contact information.
N.K.C. failed to contact the Division on November 7 and did not show up for the scheduled November 10 substance abuse evaluation. However, she did appear with G.S. on November 13, for a visit with K.J.C. K.J.C. cried during most of the visit, and as a result, N.K.C. told the worker to end the visit early. At a compliance review hearing on the following day, which G.S. did not attend, N.K.C. was ordered to submit to drug screenings, attend substance abuse evaluation/treatment, counseling, and parenting skills training. The order also stated that "[t]he Division shall continue the search for the biological father."
During the week that followed, N.K.C. called the caseworker and left a message requesting a drug assessment. N.K.C. did not leave a number at which she could be reached, but stated she would call back. On December 4, N.K.C. contacted the Division and again requested a drug assessment. The caseworker agreed to meet her that day to begin the intake process for a detoxification program.
On December 11, 2008, the Division received a call from V.M., who informed the caseworker that G.S. is the biological father of her deceased sister's two sons. She stated she was caring for her two nephews, and expressed her interest in being considered as a placement option for K.J.C. V.M. informed the Division that G.S. and N.K.C. had lived with her while K.J.C. was still in N.K.C.'s custody, and that N.K.C. had called and asked her to serve as a placement option for K.J.C.
Unable to find N.K.C. and G.S., the Division contacted the Human Services Police to search for them. The worker indicated that N.K.C. "does call the office occasionally but there is no permanent address or phone number to locate her." N.K.C. contacted the Division on January 15 to request information for a detoxification program, at which time the caseworker provided her with information for an inpatient program at St. Michael's Medical Center (St. Michael's). The caseworker also informed N.K.C. that a compliance review was scheduled for the next day. N.K.C. responded that she was ill and could not attend. Neither N.K.C. nor G.S. attended the January 16 compliance review.
In February 2009, N.K.C. called the Division from V.M.'s home and expressed her desire to have K.J.C. placed with V.M., who had previously made the same request. The Division contacted V.M. and provided her with information to begin licensure of her home.
N.K.C. arrived an hour late for a scheduled February 5 visit with K.J.C., who had already been brought back to his foster home by the time she arrived. N.K.C. explained that she "was trying to find a way to get there," and the visit was rescheduled for the following day. The caseworker and case supervisor attempted to complete a ten-month placement family discussion with N.K.C. and G.S. in lieu of her missed visit. However, N.K.C. was "irate" and indicated that she was not interested in having the discussion at that time.
On February 11, the Division contacted St. Michael's to enroll N.K.C. in a detox program, and to provide psychiatric services. The Division also made efforts to obtain identification for N.K.C., including her birth certificate and social security card, as N.K.C. had lost these documents and could not enroll in a detox program without them.
Following up on the discussions with V.M., the Division sent a resource unit to conduct a home study of V.M.'s residence. V.M. resided in a three bedroom apartment with her two nephews, whom she gained custody of through Division involvement, and two adopted daughters. The caseworker noted that "the resource unit could not ensure approval of [V.M.'s] home because of spacing issues, violations . . . in the home such as improper exposure of the heating and the building being under renovation as well as [V.M.] not having . . . sources of income" other than social security, a subsidy from her adopted daughters, and public assistance. Ultimately, V.M. was ruled out as a resource.
K.J.C. underwent an Early Intervention Program (EIP) evaluation on February 20. The evaluation summary indicated that K.J.C. was developmentally delayed, and would need speech and occupational therapy.
The Division referred both N.K.C. and G.S. for the Reunity House Supervised Visitation Program through Family Connections as well as scheduling psychological evaluations with Dr. Bartsky. Neither N.K.C. nor G.S. appeared for the evaluations.
On April 8, 2009, the Division contacted St. Michael's and was informed that N.K.C. had not been attending the Intensive Outpatient Program (IOP). On that date, the Division also referred N.K.C. for anger management (another program later terminated for lack of attendance) and parenting skills. The Division also attempted to contact the adoptive home of N.K.C.'s first child, C.C., regarding potential placement for K.J.C., as K.J.C.'s foster home did not wish to adopt.
On April 14, N.K.C. called the Division and requested a visit with K.J.C. The Division informed N.K.C. of a permanency hearing scheduled for April 22, and explained the possibility of K.J.C.'s adoption because of the length of time he had been in foster care. When the worker asked N.K.C. for contact information to set up a visit, N.K.C. stated she had no contact information and would call back. N.K.C. also stated she had left St. Michael's IOP and was trying to attend another program. The caseworker began to inform N.K.C. that she was referred for court-ordered services including a psychological evaluation, but N.K.C. stated she would get the information the following day and ended the call.
Neither G.S. nor N.K.C. attended the April 22 permanency hearing. On that date, the court approved the Division's plan for termination of parental rights (TPR) followed by adoption. The order stated K.J.C. could not be returned to his biological parents "in the foreseeable future because the mother has not fully addressed her serious and chronic substance abuse problems and both parents are missing and have not come forward to plan for their child." The Division was ordered to implement its permanency plan no later than June 5, 2009. The Division subsequently transferred K.J.C.'s case to the adoption unit.
K.J.C. was evaluated by Saint Barnabas Health Care System at Newark Beth Israel Medical Center. The evaluating doctor concluded that K.J.C. "fits into the autistic spectrum disorder."
In May 2009, the Division initiated a search for both N.K.C. and G.S., as their whereabouts were again unknown. In June, the Division learned that G.S. and N.K.C. had been residing with V.M., but that she had ordered them both to leave her home and did not know their whereabouts.
On June 5, the Division filed a complaint for guardianship of K.J.C. On the same day, an order was entered terminating the Division litigation.
G.S. contacted the Division and expressed his interest in gaining custody of K.J.C. The caseworker informed G.S. of a court hearing scheduled for July 16, 2009, and G.S. agreed to meet the worker on June 29. G.S. informed the worker that messages could be left with his mom or sister. G.S. did not attend the meeting as he was incarcerated in the Essex County Jail. G.S. was brought to the court to attend a July 23, 2009 hearing and undergo a paternity test the same day, the results of which indicated G.S. was the father of K.J.C.
At the July 23 hearing, G.S. informed the Division that his sister and mother were potential placement options, and provided their phone number to the Division. Both the mother and sister declined to serve as placement options. In addition, the Division learned that both defendants had been arrested together on June 25, 2009 for burglary. Both defendants were brought from the jail to attend an August 20 hearing at which time an order was entered that required G.S. and N.K.C. to contact the ...