On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-127-10.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2012
Before Judges Sapp-Peterson and Ostrer.
K.M.T. appeals from the trial court order terminating her parental rights to S.D.T. and granting guardianship to the Division of Youth and Family Services ("Division"). On appeal, K.M.T. urges that the trial judge's conduct during earlier abuse or neglect proceedings, as well as the judge's conduct during the guardianship trial, exhibited bias, which prejudiced her defense. K.M.T. also contends the Division failed to establish, by clear and convincing evidence, that it made reasonable efforts to assist her and that termination would not do more harm than good. We affirm.
S.D.T. is the fourth child born to K.M.T. Her parental rights to her first two children, twins born August 8, 2001, were terminated October 13, 2004. K.M.T.'s parental rights to her third child, born May 26, 2008, were terminated September 8, 2009, slightly more than one month before K.M.T. gave birth to S.D.T. on October 18, 2009. Both K.M.T. and S.D.T. tested positive for cocaine and heroin at the time of the infant's birth. The hospital contacted the Division, and a caseworker interviewed K.M.T., who admitted using heroin and cocaine. Thereafter, the Division filed an order to show cause (OTSC) seeking custody of S.D.T., which the court heard on October 22, 2009. K.M.T. did not attend the hearing. Although the Division represented that defendant had been served with the summons and verified complaint, the date and manner of service were not explained to the court. At the conclusion of the proceeding, the court entered an order (1) granting custody of S.D.T. to the Division, (2) directing the Division to refer K.M.T. for a substance abuse evaluation, and (3) ordering K.M.T. to comply with any treatment recommendations.
K.M.T. failed to attend the substance abuse evaluation as ordered and also missed two visits with S.D.T. She did not appear for the case management conference held on November 13. At the hearing, the caseworker, not under oath, explained that defendant had provided several addresses and then finally admitted to being homeless. The caseworker stated further that her only means of communication with defendant was through voicemail, but defendant no longer had any minutes remaining on her cell phone and "sometimes [defendant] returns a call, and sometimes she doesn't." However, an attorney from the Office of Parental Representation (OPR), within the Office of the Public Defender, did appear and advised the court that K.M.T. had previously been her client. The court noted that K.M.T. failed to appear at the OTSC where she could have completed an application for parental representation by OPR and that until she appeared and completed the requisite application, prior counsel was under no obligation to represent her.
The court entered an order continuing the Division's custody and once again directing K.M.T. to undergo a substance abuse evaluation. The court's order also included a recommendation that the Division consider filing a motion to be relieved of its obligation to make reasonable efforts to provide services to help K.M.T. correct the circumstances which led to S.D.T.'s removal. The Division filed the motion, which was originally scheduled to be heard in January 2010, but the Division requested an adjournment since it had been unable to locate K.M.T. or E.S., who had been identified as S.D.T.'s biological father.
The court conducted a fact-finding hearing pursuant to N.J.S.A. 9:6-8.21 to -8.73 ("Title Nine") on February 16, 2010. Neither parent appeared at the proceeding. A Division caseworker testified regarding her efforts to locate K.M.T. in advance of the hearing. Those efforts included speaking to a former boyfriend of K.M.T. who directed the worker to a laundromat where he claimed K.M.T. conducted her prostitution business. Once at the laundromat, the worker spoke with a person familiar with K.M.T. who indicated that K.M.T. had moved to Broadway and Atlantic Avenues, the location of a Chinese store. The worker, with a picture of K.M.T., went to Broadway and Atlantic Avenues in search of her, but did not see K.M.T. in the area.
The court took testimony from two Division workers, after which the court entered an order finding that it was satisfied by more than a preponderance of the evidence that S.D.T. was abused and neglected. The court cited, as evidence of abuse and neglect, the fact that K.M.T. received no prenatal care, both she and S.D.T. tested positive for drugs at the time of S.D.T.'s birth, K.M.T. admitted to using illicit drugs a few days before S.D.T.'s birth, she lacked stable housing, and there had been prior referrals involving her other children who reportedly were born with the presence of cocaine in their bodies. The court also took judicial notice of a 2009 court proceeding resulting in the termination of K.M.T.'s parental rights to another child on September 8, 2009.
After being personally served with a summons and copy of the Division's motion seeking to be relieved of the obligation to make reasonable efforts to assist her, K.M.T. failed to appear for the hearing the court conducted on March 29, 2010. At its conclusion, the court granted the Division's motion and scheduled a permanency hearing for the following month.
The permanency hearing took place on April 23, 2010. K.M.T. again failed to appear. The caseworker testified that the Division's plan for S.D.T. was termination of parental rights followed by select home adoption, and noted K.M.T. had not contacted the Division regarding S.D.T.'s well-being, nor had she requested visitation. The caseworker also advised the court that S.D.T.'s current foster parent was not interested in adopting him.
The Division filed its complaint for termination of K.M.T.'s and E.S.'s parental rights and for guardianship on June 3, 2010. The following month, both parents appeared before the court with assigned counsel. While recognizing the Division had been relieved of any obligation to make reasonable efforts to provide services to K.M.T., her attorney requested that a substance abuse evaluation be arranged by the Division. The Division did not object to this request. K.M.T. also requested visitation with S.D.T. In response to the court's inquiry as to when she last visited with S.D.T., K.M.T. indicated she had not seen him since his birth. The court responded: "The policy of this [c]court is that whatever parenting time is occurring at the time that the guardianship is . . . filed will continue. So, if she's seeing the child weekly, two hours, then that continues. If she's not seeing the child, that would not commence now."
Defense counsel asked the court to reconsider its decision, explaining that there "may have been incarceration for some periods of time[.]" The court indicated that its "answer remains the same[,]" also adding that it was K.M.T. who chose not to see her son for ten months. Although K.M.T. told the court she had been on drugs during those months and was now "clean," the court did not order visitation. The court terminated the Title Nine litigation and ordered K.M.T. to undergo a psychological and bonding evaluation, as well as a paternity test for E.S.*fn1 Immediately following the hearing, K.M.T. underwent a drug screen, which yielded negative results.
The next court proceeding took place on August 9, 2010. K.M.T. failed to appear, notwithstanding that she had been given notice by the court of the new date and time during the proceeding held less than one month earlier.
On September 14, 2010, K.M.T. attended a psychological and bonding evaluation with Dr. James Loving, during which she reported that she had been involved with G.D. for the past two and one-half months and viewed him as "her most important, positive, and reliable support at this point[,]" and believed he was keeping her from using drugs. She reported heavy cocaine and heroin usage prior to early July 2010, and arrests for prostitution and parole violations. Dr. Loving noted that her mental state appeared normal, though her judgment was "[h]istorically poor and impacted by chronic substance abuse." Dr. Loving opined K.M.T. posed "an extremely high risk for continued drug abuse and dependence" and "has not yet made any demonstrable progress in terms of establishing stable, independent housing or finances." Dr. Loving concluded:
Based on this evaluation, [K.M.T.] cannot be seen as ready for safe, healthy reunification now or in the foreseeable future. . . . [S]he must be seen as posing an extremely high risk for drug relapse, even after giving her credit for achieving abstinence in recent months. Despite her high motivation and other positive factors that are present at this immediate time, [K.M.T.'s] situation is extremely tenuous and high-risk. In order to serve as a safe, stable[,] full-time parent, she would first need to participate in a lengthy and intensive substance abuse treatment program. Ideally[,] in her case, this would include several months of residential programming, followed by step-down to [intensive out-patient] level care to give her continued support in the community. She would also need to participate in individual therapy, both in order to help her cope with depression and other emotional struggles, and also to build skills in terms of independence, assertiveness, and stability. Meanwhile, [K.M.T.] would need to begin building a relationship with [S.D.T.], a child who unfortunately has no relationship or attachment with her, due to her absence ...