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New Jersey Division of Youth and Family Services v. C.M

October 27, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-0056-10.

Per curiam.



Submitted September 14, 2011

Before Judges Waugh and St. John.

Defendant C.M. appeals from an August 2, 2010 final judgment of the Family Part terminating her parental rights and granting guardianship of her son J.J.M. to plaintiff, New Jersey Division of Youth and Family Services (DYFS). We affirm.

These are the relevant facts adduced at the trial. J.J.M., born on January 21, 1998, is the child of defendant and J.K.*fn1 In 2002, J.J.M. was the subject of an earlier removal by DYFS as a result of a referral from the Morris Township Police Department. C.M. had been involved in an automobile accident in the company of J.J.M., which led to a charge of driving while impaired. A guardianship complaint was filed, and J.J.M. was ultimately returned to C.M. after trial in December 2004. In that action, the trial court determined that the State had not proven that C.M. presented a threat of harm to her son. Thereafter, there were several unsubstantiated referrals to DYFS regarding C.M. and her alleged abuse and neglect of J.J.M. As a result of continuing referrals, J.J.M. experienced significant upheavals in his life, including multiple out-of-home placements. In his decision in the present case, Judge Michael P. Wright stated that the court accorded no weight to any of those prior allegations.

In April 2008, there was another referral to DYFS as a result of C.M. being arrested for allegedly driving under the influence, with J.J.M. as a passenger in the car. C.M. signed a case plan in April, specifying that J.J.M. would stay with his maternal grandfather and that C.M. was not to drive with J.J.M. in her car. Reunification occurred shortly thereafter and was maintained until an incident on August 29, 2008, when the police were notified that C.M. had passed out on her bathroom floor, allegedly due to an overdose of prescription pain medication.

C.M. was subsequently hospitalized, expressed suicidal ideation, and was admitted to the psychiatric unit.

DYFS removed J.J.M. and filed a new complaint for custody, care, and supervision, which was granted on September 8, 2008. C.M. was ordered to attend substance abuse treatment, random urine screens and psychological evaluation. In October, C.M. entered an inpatient treatment program, but signed herself out after four days. Thereafter, she entered an outpatient substance abuse program. In November, the outpatient program recommended that she receive a higher level of care due to her inability to abstain from substance abuse. She was then referred for inpatient treatment at Summit Oaks Hospital, which she commenced on December 5, but thereafter terminated by signing herself out on December 10, 2008. A stipulation in lieu of fact finding was filed on January 9, 2009, wherein C.M. acknowledged relapsing in the use of prescription medication. The judge found her acknowledgement was consistent with the in camera testimony of J.J.M. and with the general allegation in the complaint of her prescription medication problems. The judge also found that C.M. had prescription medication problems and that she was abusing her medication. However, the stipulation was not signed by C.M. or her attorney. She reentered outpatient treatment in March 2009, but was terminated in April due to her lack of attendance. C.M. again reentered in May, but a lab result showed a relapse on June 23, 2009.

DYFS provided C.M. with individual therapy, which had limited success due to C.M.'s inability to understand the effect of her substance abuse and its impact on J.J.M. In October 2009, the services were terminated. Defendant's clinician noted that visits by C.M. with J.J.M. placed him at risk of emotional/psychological harm, particularly when he observed that she is under the influence.

On August 6, 2009, a permanency plan was adopted calling for termination of parental rights followed by adoption. The judge found that it would "not be safe to return the child home in the foreseeable future because: [C.M.'s] home remains to be a risk to [J.J.M.] due to her substance abuse." He further found that "[C.M.'s] most recent relapse was on 6/23/09 and displays her continued struggle with addiction to prescription drugs."

The complaint for guardianship was filed and an Order to Show Cause for Guardianship was issued on September 22, 2009. A case management order scheduling a bonding evaluation for C.M. and her son was issued. A second case management order required therapeutic visitations to be undertaken as recommended. Evidence was to be exchanged by May 10, 2010, and C.M. was ordered to submit to a hair follicle test. Two additional case management conferences were held in May 2010.

A trial was held for five days between May 24 and June 24, 2010, with a decision terminating C.M.'s parental rights pursuant to N.J.S.A. 30:4C-15.1(a) being issued on August 2, 2010. At trial, Dr. Jewelewicz-Nelson, an expert witness for DYFS, opined that J.J.M. needed the guaranty of permanency that neither reunification nor kinship legal guardianship would provide. This expert further concluded that C.M. possessed deficits in knowledge of child rearing and that C.M. is at serious risk for physical child abuse. The trial court found this expert to be "credible, reliable and supported by the evidence." The Law Guardian expert agreed, and indicated that J.J.M. needed to be free for adoption.

In addition, the trial judge noted that C.M.'s May 19, 2010 psychological evaluation by Alice Nadelman indicated that C.M. "is not actually in recovery, but remains an active addict who lies, distorts, and denies about her drug involvement." Judge Wright found that C.M., during the time of her interaction with DYFS, has suffered from an "ongoing and pervasive addiction to prescription medication." The judge noted that as recently as March 24, 2010, a hair follicle sample tested positive. He also reviewed C.M.'s pharmacy records which disclosed filled prescriptions for at least "1,000 Hydrocodone and 900 Carisoprodol tablets between January 1, 2010 and May 1, 2010."

C.M. testified in opposition to termination of her parental rights. The trial judge stated that he "had the opportunity to observe C.M.'s demeanor on the witness stand and found her rather disorganized answers less than credible." He also found that "the totality of the record regarding [C.M.'s] history of substance abuse and inappropriate reversal of parent-child roles when [J.J.M.] is in the home, clearly and convincingly indicate that J.J.M.'s safety health and development . . . will continue to be endangered by an ongoing parental relationship with [C.M.]."

After reviewing the evidence adduced at the trial, Judge Wright set forth each of the four prongs of N.J.S.A. 30:4C-15.1(a), found the facts, applied the law to each prong, and determined that "each of the four prongs has been established by clear and ...

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