On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0079-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 27, 2011
Before Judges Carchman, Fisher and Baxter.
Defendant N.G. appeals from a judgment of the Family Part terminating her parental rights to her child, K.G., born August 27, 2007, and granting guardianship of the child to plaintiff Division of Youth and Family Services (DYFS). Among her arguments, defendant asserts that, under the facts presented, DYFS never had "a legal right" to the care and custody of K.G. From this premise, defendant claims DYFS did not have the authority to seek termination. We reject these arguments as without merit and affirm.
These are the relevant facts adduced from the record.
N.G., the mother of three other children who are no longer in her custody, has a long history of drug addiction and criminal behavior. In 1990, she was sentenced to probation for endangering the welfare of a child; that probation eventually terminated. Subsequently, N.G. was sentenced to a four-year term of imprisonment. Also in 1990, she was sentenced for aggravated assault and theft to a term of five years imprisonment.
N.G.'s criminal activity continued, as in 1999, when she pleaded guilty to possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school. She was sentenced to a term of three years in prison with a parole ineligibility period of eighteen months. In March 2003, she pleaded guilty to the same charge and was sentenced to a term of five years with two and a half years of parole ineligibility.
When K.G. was born in 2007, both she and N.G. tested positive for cocaine. At the time of K.G.'s birth, N.G. did not have stable housing and admitted to using cocaine, alcohol, marijuana and tobacco during her pregnancy. K.G. was born prematurely after thirty-four weeks' gestation and spent three days in the Neo-natal Intensive Care Unit after being diagnosed with intrauterine drug exposure, respiratory distress and suspected sepsis.
Following a hospital hold on the child, DYFS filed a complaint for
care and custody of K.G. As a result, the child was placed with J.S.,
a family friend, who has custody of N.G.'s older daughter, M.G., who
is approximately fifteen years old and K.G.'s half-sister.*fn1
J.S. reported that N.G. did not visit K.G. until five days
after the baby was released from the hospital, and N.G.'s subsequent
visits were infrequent and at irregular intervals.
Shortly after K.G.'s birth, N.G. began attending a drug treatment program at Cooper House, where she tested positive for cocaine through mid-September 2007. N.G. was hospitalized in December 2007. That month, N.G. was found to have abused and neglected K.G. because of N.G.'s long history of drug abuse, culminating in K.G.'s testing positive for cocaine at the time of her birth, which condition placed K.G. at a substantial risk of harm.
On December 17, 2007, N.G. was referred to the Robin's Nest Parenting Program to supervise her visits with K.G. The supervised visits between N.G. and K.G. did not begin until March 6, 2008 because N.G. was placed on a waiting list. While waiting for supervised visits to begin with the parenting program, N.G. visited K.G. at J.S.'s home. J.S. reported that after visits from N.G., K.G. would cry and not sleep well. The primary care doctor told J.S. that K.G.'s behavior was likely attributable to the change in environments that occurred when N.G. visited. As stated above, the Robin's Nest supervised visitation program began on March 6, 2008. By June 2008, N.G.'s visits were partially supervised, and the program assisted N.G. in caring for K.G. as well as dealing with N.G.'s finances.
The ensuing reports regarding N.G.'s progress were encouraging. On March 12, 2008, Cooper House reported that N.G. was doing well in the program, had not tested positive for drugs, and had started a GED program. A follow-up report from Cooper House was equally positive. On June 27, N.G. completed GED classes and received her high school diploma. Earlier, on June 16, the court ordered that K.G. be reunified with N.G. prior to the next court date if all parties agreed. Thereafter, N.G. completed the substance abuse treatment program at Cooper House. On July 30, a bonding evaluation between N.G. and K.G. was ordered in contemplation of reunification. Although the evaluator reported that K.G. had separation anxiety from her foster mother, Dr. Richter recommended that reunification continue.
A permanency hearing was held on September 26, and the court ordered that K.G. be returned to N.G. once N.G. found suitable housing. K.G. was reunited with N.G. on October 20, and the case was terminated on January 30, 2009.
The reunification was short-lived, as, on January 15, 2009, the Division received a referral stating that N.G. had left K.G. at the home of J.S. for a few days. The referral source was concerned because N.G. called and asked J.S. to drop K.G. off at the child's maternal grandmother's home. However, the maternal grandmother stated that she did not want K.G. at her home and believed that N.G. was drunk.
On February 9, 2009, DYFS received another referral that N.G. had dropped K.G. off at J.S.'s home and had not returned for her after three days. The source stated that the medication N.G. left for K.G. was insufficient for the amount of time K.G. spent at J.S.'s house. A DYFS worker located N.G., who stated that J.S. knew she was having difficulty obtaining medication.
After missing two scheduled appointments in March 2009, on April 2, N.G. completed a substance abuse evaluation. N.G. denied any alcohol or drug use since 2007, but during the evaluation, she tested positive for cocaine. N.G. was recommended for intensive outpatient treatment and was re-admitted to Cooper House on April 17. N.G. did not attend any treatment sessions and was discharged unsuccessfully on April 24, 2009. Other attempts were made to have N.G. enter substance abuse programs, but they were unsuccessful.
DYFS received another referral on May 31, which reported that N.G. had left K.G. at the source's home, stating that she would be right back, but had not returned. Mutual friends indicated that N.G. was in a crack house. Later that day, DYFS received a call that N.G., who was high, had taken the child.
A DYFS worker went to N.G.'s home and spoke to her. N.G. denied that she had used drugs and did not appear intoxicated.
N.G. allowed the worker to enter the home, and the worker observed K.G., who appeared healthy and happy.
Less than two months later, however, N.G. was arrested while K.G. was at J.S.'s home. N.G. told DYFS that she was in jail for nonpayment of child support and that she did not know when she would be released. DYFS took custody of K.G. and continued her placement with J.S. DYFS then filed a new complaint for custody on July 21, 2009, which was granted.
J.S. notified the caseworker that, although visitation was ordered by the court, N.G. only visited K.G. sporadically after August 2009. DYFS continued to make referrals for N.G. for drug treatment. N.G. attended a re-evalaution in December 2009, but she refused to enter an inpatient program as recommended.
At a permanency hearing in September, the judge ordered that the permanency plan for K.G. change from reunification to termination of N.G.'s parental rights and adoption by J.S.; DYFS was ordered to file a guardianship complaint by October 26, 2009. DYFS filed a complaint for guardianship on October 22, 2009.
On November 16, 2009, a fact-finding hearing was held. The court took judicial notice of the prior fact-finding, held on December 4, 2007, concluding that N.G. had abused or neglected K.G. N.G.'s attorney consented to proceeding in this manner because, the parties agreed, two fact-findings involving the same mother and child would be superfluous. The court also determined that J.K., K.G.'s father, would require a fact-finding hearing. Additionally, N.G. was ordered to comply with inpatient substance abuse treatment.
Another case management evaluation was held on December 4, 2009. N.G. was ordered to comply with substance abuse treatment and urine screens. She was also informed that her visitation with K.G. would be every Monday, and all evaluations were ordered to be scheduled before February 5, 2010, the date of the next proceeding.
Throughout the litigation, N.G.'s visitation with K.G. was sporadic; at most, she visited two times a month. Moreover, when she did visit K.G., J.S. reported that K.G. became very "clingy," to the point that J.S. could not be out of her presence, and K.G. soiled herself, even though she was toilet-trained. In addition, the caseworker observed K.G. in J.S.'s home and noted that K.G. and J.S. had a very good, nurturing relationship.
N.G. completed her substance abuse evaluation on January 14 and admitted to using alcohol and crack cocaine four days earlier. Residential inpatient treatment was again recommended, which N.G. refused.
Dr. Ronald Gruen, Ed. D., conducted a bonding evaluation between K.G. and J.S. on February 8, 2010. He found that K.G. called J.S. "mommy" and that there was a strong psychological bond between the child and J.S. He opined that K.G. would suffer significant emotional harm if she were removed from her foster mother's care. In March, Dr. Gruen conducted a psychological evaluation of N.G. and a bonding evaluation between N.G. and K.G. During the psychological evaluation, N.G. admitted that crack cocaine was her "drug of choice" but told Dr. Gruen that this time would be different from her last attempts to terminate her drug use because she wanted to raise K.G. However, she also admitted to using cocaine a week before the evaluation. Gruen also noted that N.G. "was rather cavalier in her statements, showing no remorse for the emotional, if not physical, damages which she has inflicted on her children." He diagnosed N.G. with a personality disorder with narcissistic and antisocial traits, in addition to her drug dependence. He later opined that her narcissism "means she does what she does for herself first, she counts first, anybody else counts last. And that she's antisocial, which means that she'll do whatever she needs to do to get gratification of her want and needs, including breaking the law." He concluded, "Results of the Psychological Evaluation indicate that [N.G.] is not able to parent satisfactorily, and is unlikely to be [able] to do so for the foreseeable future."
During the bonding evaluation, Dr. Gruen noted that K.G. was not excited to see her mother and had to be directed by her mother to sit on her lap. K.G. referred to N.G. by her nickname, "Neeni," which displeased N.G. N.G. "repeatedly questioned the child until the child responded, 'Mommy.'" N.G. played appropriately with K.G., but the child separated easily from N.G. Dr. Gruen opined that the relationship was one of an acquaintance, with no significant psychological bonding, and that K.G. would not suffer significant emotional harm if the relationship were permanently severed.
At trial, the judge considered the testimony of the Division's caseworker and its expert witness, Dr. Gruen. N.G. was not present and presented no witnesses. The judge subsequently issued a written opinion terminating N.G.'s parental rights to K.G.
In her opinion, Judge Silverman-Katz found by clear and convincing evidence that DYFS had satisfied the four-prong test for termination of parental ...