On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FG-06-19-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2011
Before Judges Messano, Espinosa and Kennedy.
In these consolidated appeals, defendants W.B. and R.B. appeal from the Family Part's October 12, 2010 order terminating their parental rights to their children, Z.B., L.B. and V.B.
W.B. contends that the statutory requirements of N.J.S.A. 30:4C-15.1 were not proven by clear and convincing evidence and R.B. contends that the Division of Youth and Family Services (DYFS or the Division) "failed to produce evidence demonstrating it met the burden to satisfy the second, third and fourth prongs in N.J.S.A. 30:4C-15.1(a)(3)[sic]." Both also contend that the court erred in not granting kinship legal guardianship of the children to a relative, N.B., pursuant to the Kinship Legal Guardianship Act, N.J.S.A. 3B:12A-1 to -7. After reviewing the record in light of the contentions advanced on appeal, we affirm substantially for the reasons stated by Judge Julio Mendez in his written opinion. The findings are "based on clear and convincing evidence supported by the record," and the legal conclusions are sound. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004).
W.B. and R.B. are the biological parents of Z.B., born September 24, 2006; V.B., born September 17, 2007; and L.B., born September 18, 2008. W.B. has given birth to ten children, and R.B. is the father of six of those ten children. Neither W.B. nor R.B. has custody of any of their children.
The involvement of DYFS with the family began in 1997 when it received a referral reporting W.B. had been neglecting one of her children, who had died in the hospital. The Division did not substantiate neglect.
In 2006, the Division again became involved when it received a referral that W.B. had been treated in an emergency room for a laceration and that she was pregnant with an elevated blood alcohol level of .259. W.B., who was pregnant at that time with Z.B., contended the laceration occurred when she was hit on the head during a bar fight. Although neglect was unfounded, W.B. was referred to an outpatient treatment program for alcohol dependency. She was terminated from that program due to non-compliance. R.B. was also evaluated for substance abuse and was referred to a level two intensive outpatient program. However, the services were never completed. On September 24, 2006, W.B. gave birth to Z.B.
On September 17, 2007, W.B. gave birth to V.B. At the hospital, W.B. was found to have an elevated blood alcohol level of .244 and was given a substance abuse evaluation. She was referred to intensive outpatient treatment but was terminated from services due to lack of attendance. On May 5, 2008, W.B. was admitted to the CURA Intensive Outpatient Program for substance abuse and, on her first urine screen, tested positive for cocaine. Because of that positive test, the Division determined that a safety protection plan was required. The plan required that any contact made between W.B. and her children must be supervised at all times.
In June 2008, the Division received a report that W.B. had again tested positive for cocaine and had stopped attending treatment. It was also reported that she was five months pregnant. After attempting to locate W.B. and her children for several weeks, a DYFS caseworker visited the home of W.B.'s mother. The mother denied knowing the whereabouts of W.B. and the children, Z.B. and V.B. However, as the caseworker was about to leave, Z.B. came into the room and appeared to be filthy and uncared for. W.B.'s mother at this point admitted that V.B. was also in the house and he was discovered to be also in a filthy condition and "covered in vomit." The mother advised that W.B. had left the children with her and she did not know where W.B. was living at the time. Consequently, the Division removed both children from the home because W.B. had violated the safety plan and because of her history of substance abuse and non-compliance.
On June 24, 2008, the Division filed a Verified Complaint for custody of Z.B., V.B. and the unborn baby. The trial court granted custody to the Division and required both W.B. and R.B. to submit to substance abuse tests and participate in treatment services. It also required W.B. to participate in psychological services. On July 25, 2008, a comprehensive health evaluation report was completed for Z.B. The report noted that Z.B.'s development fell substantially short of the average growth rates for normal children and noted problems with growth failure, delayed immunization, abnormal behavior and development. Z.B. was diagnosed with "failure to thrive" and referred to the Children's Hospital of Philadelphia.
Also, in July 2008, R.B. completed a substance abuse assessment and was referred again to an outpatient treatment program, but the treatment was not completed due to his non- compliance. Again, in August 2008, R.B. was admitted to a substance abuse treatment program after being referred by the Cumberland County Probation Department. He eventually stopped attending and tested positive for marijuana and was discharged from the program for failure to attend its sessions.
On September 20, 2008, the Division received a referral from the South Jersey Regional Medical Center that W.B. had given birth to L.B. on September 18, 2008. Although she tested negative for cocaine at the time of her birth, she attempted to leave the locked ward against medical advise and abandon the newborn child. The Division contacted R.B. and W.B. on September ...