On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-97-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 19, 2012
: Before Judges Axelrad, Sapp-Peterson and Ostrer.
D.M.N. appeals from a March 15, 2011 judgment of the Family Court terminating her parental rights to her son Kyle,*fn1 then twoand-one-half years old, and awarding guardianship to the Division of Youth and Family Services (DYFS) for the purpose of effectuating his adoption.*fn2 On appeal, D.M.N. argues DYFS did not prove by clear and convincing evidence the four statutory prongs required to establish that her son's best interests require severance of her parental ties. In particular, D.M.N. argues the trial court committed reversible error in taking judicial notice of findings of harm in her prior Title 9 proceeding, and asserts general challenges to the other three prongs. We note the Law Guardian supports termination of D.M.N.'s parental ties to Kyle.
After considering the record and briefs in light of the applicable law, we are satisfied the court's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006). We affirm.
We need not describe in detail the many facts the court considered in its determination. We instead provide a brief summary of the relevant procedural history and cogent facts we considered in concluding such findings were well-supported by the record.
The following testimony and evidence were presented during the nine-day trial that commenced before Judge Verna G. Leath in November 2010 and continued, on non-consecutive days, until its conclusion in February 2011. DYFS presented the factual testimony of its caseworker Cassandra McGhee and documentary evidence, such as contact sheets and investigation summaries created by other DYFS caseworkers, including Shaundra Gifford, Heather Nutter and Bridgett Williams. Kyle's foster mother, J.H., also testified. DYFS presented the expert testimony of Eric Kirschner, Ph.D., who performed a psychological evaluation of D.M.N. and conducted bonding evaluations of Kyle with both D.M.N. and J.H.
D.M.N. testified on her own behalf and also presented the testimony of her god sister, T.Y.W. She presented the expert testimony of Joseph P. Lorelli, M.D., who treated her at the Lennard Methadone Maintenance Clinic (Lennard).
DYFS has been involved with D.M.N. since 1994. D.M.N. has a longstanding history of substance abuse. She has an older son who resides with her maternal grandmother. She previously had her rights terminated to her two younger children due to their being born premature and testing positive for drugs upon birth, and D.M.N.'s testing positive for drugs and being homeless.
Kyle was born on August 5, 2008, at University Hospital in Newark. D.M.N. identified A.B. as the boy's father. He was also the father of D.M.N.'s other two children to whom their parental rights were terminated.
DYFS received a referral from the hospital the following day with concerns because Kyle had been born premature, weighing slightly less than two pounds, and though he did not test positive for drugs at birth, D.M.N. did test positive for methadone and HIV.
D.M.N. informed DYFS workers she had been residing for the past month at Renaissance House, an intensive inpatient drug rehabilitation program. Previously D.M.N. was homeless. D.M.N. further explained she had been enrolled in the methadone treatment program through Lennard. D.M.N. told caseworkers she had been struggling with her cocaine and heroin addiction for over fifteen years but had not used drugs since April 2008. Later investigations proved this assertion false. D.M.N. admitted to only one month of prenatal care before Kyle's premature birth. D.M.N. planned on residing at the Renaissance House with her son, as the house allowed babies in the program. She named three relatives -- her grandmother, L.P., her aunt, A.N., and her stepmother, M.M., who were willing to help with Kyle.
Gifford met with D.M.N. at the Renaissance House on August 11, 2008. D.M.N. told the caseworker that A.B. had been incarcerated since February. D.M.N. also reported she had been incarcerated. While she was in jail, she discovered she was pregnant with Kyle.
On August 22, 2008, D.M.N. signed a case plan with DYFS to continue her stay at Renaissance House and comply with her treatment program. Due to Kyle's multitude of complex medical problems, including anemia due to prematurity, opiod withdrawal and an umbilical hernia, he was destined to stay in the hospital for eleven months following his birth. DYFS did not seek immediate custody of Kyle, but, instead, gave D.M.N. an opportunity to comply with her drug treatment program.
However, on October 1, 2008, Nutter received a call from Renaissance House staff advising that D.M.N. had left the treatment program on September 30 because she no longer wished to participate. On October 21, 2008, D.M.N. visited the DYFS office to inform workers that she was enrolled in Lennard and was attending the clinic seven days a week for methadone maintenance. D.M.N.'s enrollment in Lennard was confirmed in a letter from a clinic counselor who stated she was attending weekly individual counseling and parenting groups.
On December 2, 2008, under Docket No. FN-07-262-09, DYFS filed a complaint for custody pursuant to N.J.S.A. 9:6-8.21 (Title 9), seeking custody of then five-month-old Kyle. The complaint alleged D.M.N. abused or neglected her son as a result of her substance abuse, her noncompliance with drug treatment programs, and the child's exposure to drugs at birth. A.B. was joined as a defendant. On that date, DYFS was granted custody, care and supervision of Kyle.
In January 2009, Kyle was diagnosed with Broncho Pulmonary Dysplasia, or chronic lung disease, but was in stable condition. However, he still required oxygen to assist with his breathing and around-the-clock treatment and monitoring. On February 9, 2009, Kyle was transferred to the Children's Specialized Hospital in New Brunswick. DYFS restricted D.M.N. to supervised visitation based on a call received from a University Hospital specialist on January 28, which advised that D.M.N. had fallen asleep while holding Kyle during her visit and which expressed concern that she was possibly under the influence at that time. The caseworker provided D.M.N. with a train schedule and applied for train tickets so D.M.N. and A.B. could attend the scheduled visitations.
Following a fact finding hearing on January 23, 2009, Judge Leath found DYFS had proven by clear and convincing evidence that D.M.N. had abused or neglected Kyle by using drugs during her pregnancy, and memorialized this finding in an order on the same date. After a compliance hearing on March 18, 2009, D.M.N. and A.B. were directed to comply with drug treatment programs, undergo psychological evaluations, and participate in parenting skills classes. D.M.N. was referred to Babyland Family Services (Babyland) for parenting classes. Kyle was to remain in the custody of DYFS.
On May 14, a court-ordered drug screen revealed that D.M.N. tested positive for cocaine. On May 23, D.M.N. gave birth to a stillborn at four months gestation.
On July 2, 2009, Kyle was discharged from hospitalization for the first time since his birth eleven months prior, into the custody of his foster mother, J.H. As a result of Kyle's medically fragile condition, the hospital recommended he attend special day care for therapy and treatment five days a week.
An intake was scheduled for D.M.N. and A.B. at Babyland on July 8, 2009. However, A.B. died of a drug overdose on July 5, 2009. By letter dated July 28, D.M.N. was again referred to Babyland for parenting intake. On August 4, 2009, however, DYFS was informed that although D.M.N. arrived for the intake process that day, she was incapacitated and unable to complete the forms and interview. On October 16, 2009, D.M.N. enrolled in the parent education program at Babyland but on May 17, 2010, the DYFS caseworker received a letter from Babyland stating that D.M.N. had been discharged from the program due to having five unexcused absences.
DYFS contacted several of D.M.N.'s relatives for potential placement of Kyle. A.B.'s mother declined because of her age, she questioned the paternity of the child, and she was concerned the child's needs could become overwhelming. D.M.N.'s aunt, A.N., was ultimately ruled out because she suffered from medical issues, had pending criminal charges, and lived in a senior citizen facility that did not allow children. D.M.N.'s paternal grandmother, who had custody of D.M.N.'s oldest child, informed DYFS she was not interested in caring for Kyle. D.M.N.'s stepmother, M.M., was ruled out because of her criminal convictions. ...