On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FG-16-000021-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2011
Before Judges Payne, Reisner and Simonelli.
In these consolidated appeals, defendants M.L.R. and T.R. appeal from a May 5, 2010 order terminating their parental rights to their daughter M.R. We affirm.
We begin with the most pertinent evidence introduced at the first guardianship trial, which began in March 2009. At that time, M.L.R. was in prison serving a sentence that would not end until 2016.*fn1 There was no dispute that T.R. had a long history of drug addiction, which she supported through prostitution. As a result of her persistent drug problems, she was unable to care for her first child, Q.R.*fn2 Her second child, M.R., was born on October 23, 2006. She was medically fragile and had barbiturates in her system. T.R. admitted using heroin during her pregnancy. After an extended stay in the hospital, M.R. was placed in Hudson Cradle, a facility for children with special medical problems, and was then moved to another specialized foster home, and finally to a regular foster home. Despite efforts by the Division of Youth and Family Services (DYFS or Division) to provide T.R. with drug treatment, T.R. was completely uncooperative until April of 2008, when she finally agreed to begin treatment. She completed the program in December 2008.
By the time of the first trial, M.R. was in her fourth outof-home placement (including her lengthy hospital stay) and, according to the state's expert psychologist, Dr. Jewelowicz-Nelson (Dr. Nelson) the child had already developed reactive attachment disorder. However, Dr. Nelson opined that the child's most recent foster mother interacted very well with the child, had excellent parenting skills, and represented her best hope for overcoming the disorder. At that point, M.R. had only been living with this foster parent for two months.
Based on her evaluation of T.R., including psychological tests and a bonding evaluation, Dr. Nelson opined that T.R. would be unable to safely parent her daughter and would be unable to help her develop a secure attachment. Dr. Nelson testified that, on standardized tests and in her very slow reaction to every question asked, T.R. showed signs of brain injury from a childhood auto accident. She also responded to the tests in ways that demonstrated a lack of understanding of the behaviors a parent could realistically expect from a two-year-old child. The bonding evaluation supported those test results. Further, T.R. was a "loner" who expected the worst from life and was likely to emotionally neglect a child. Taking the child from her foster parent, and placing her with a parent who was unable to meet her needs, was likely to result in continuing psychological harm.
The Division presented testimony concerning its unsuccessful efforts to find relative placements for the child. However, T.R. presented testimony from her father, E.R., that he had stable employment, was willing to care for the child, and was willing to adopt her. Although E.R. worked four days a week, from 3:00 a.m. to 1:30 p.m., and was then caring for his rather difficult teenage granddaughter Q.R., he insisted that he would also be able to care for two-year-old M.R., with assistance from a home aide. At the time of the trial, he had only met M.R. twice. There was also evidence that the Division had ruled out E.R. as a caretaker based on inaccurate information about his having a criminal record.
T.R. presented expert testimony from a psychologist, Dr. Gerard Figurelli, that T.R.'s unrealistic expectations of children's behavior could be improved with parenting classes and, while she did not have a "fully reciprocal" bond yet with the child, "the foundation for such a relationship to develop was there." However, even Dr. Figurelli admitted that T.R. was not able to act as the child's parent. Rather she could "act in a supportive parenting role," which he explained meant "supportive to . . . an adequate primary caretaker." He did not observe the child's interaction with her foster mother, and could not opine as to the impact of removing the child from the foster home. However, he opined in general that it was always better for a child to live with relatives.
In an oral opinion issued May 6, 2009, and a written decision dated May 18, 2009, Judge Sabbath found that DYFS had clearly satisfied the first and second prongs of the best interests test, because T.R. had "severe psychological deficits" and was emotionally unable to parent the child, and M.L.R., who had no relationship with the child, was serving a lengthy prison term in another state. He also found that the agency had properly ruled out all other relative placements, except for the maternal grandfather, E.R. However, the judge concluded that DYFS had not satisfied the third and fourth prongs of the best interests test, because the agency did not give E.R. sufficient consideration as a caretaker and the child had not bonded with the foster parent. Therefore, he dismissed the guardianship complaint and returned the case to the "FN" docket, "with a mandate [to DYFS] to consider the grandfather, and to provide the necessary services and assistance, and to make a more than arbitrary decision" whether to accept him or rule him out.
Less than a month later, however, after a testimonial hearing before Judge de la Carrera, the Division obtained court permission to once again seek termination of defendants' parental rights. In that June 12, 2009 hearing, the Division produced testimony that despite the agency's efforts to assist the grandfather and its offers of visitation, E.R. still had not visited the child and had not completed the process of becoming qualified as a home placement for M.R. The Division also presented testimony that E.R. was providing only minimal supervision for an older grandchild, Q.R., who was living with him. Therefore, DYFS had ruled him out as a placement resource.
A second guardianship trial was held before Judge Sabbath beginning on February 17, 2010. At this trial, DYFS represented its evidence concerning M.R.'s birth and placement history; T.R.'s persistent refusal to enter drug treatment until April 2008; M.L.R.'s long-term incarceration; and the Division's efforts to identify relatives who might be willing and able to care for the child. A DYFS case worker explained in detail why the agency had ruled out several relatives.
Focusing on the maternal grandfather, E.R., the DYFS witness explained that initially E.R. was living with his wife, L.R.,
who had severe mental illness. Then E.R. was living with a woman who had a DYFS history. When his paramour finally moved out, not long before the first trial, E.R. still needed to become a licensed foster parent. Moreover, in light of his work schedule, E.R. needed to provide DYFS with a plan for how he was going to care for M.R. if she lived with him. DYFS sent E.R. an application for "4C's", which would have provided him with daycare. Despite letters and ...