On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FG-07-0137-10 and FN-07-0288-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 29, 2012
Before Judges Waugh and St. John.
The New Jersey Division of Youth and Family Services (DYFS) appeals an order of the Family Part, dated March 23, 2011, dismissing its guardianship complaint filed against defendant S.L.U. (Sue) for termination of Sue's parental rights and for resource parent adoption of Sue's son, A.R.U. (Aaron).*fn1 The order also terminated the guardianship litigation and reopened the protective service litigation. DYFS argues the judge erred by not terminating Sue's parental rights, as DYFS established by clear and convincing evidence each prong of the best interests of the child standard, N.J.S.A. 30:4C-15.1(a). We disagree and affirm.
On appeal, the record discloses the following facts and procedural history.
On November 30, 2007, DYFS received a referral from Sue's uncle, indicating that seventeen-year-old Sue was seven months pregnant, homeless, and without supervision because her mother, P.U. (Pearl), was incarcerated. Sue was placed in DYFS's custody on January 7, 2008. DYFS received a second referral, reporting that Sue had given birth to Aaron on January 20, 2008. M.W. (Michael) is Aaron's father.*fn2 DYFS executed an emergency removal and Sue and Aaron were temporarily placed in the physical custody of Sue's maternal relative. DYFS also filed a verified complaint and order to show cause pursuant to N.J.S.A. 30:4C-11 and -12, and was granted custody, care, and supervision of Aaron.
On February 19, 2008, Sue and Aaron left the care of her relative because Sue would not follow her relative's house rules, and they were placed at Isaiah House, a mother/child shelter that provides parenting classes and therapy. On February 29, 2008, the Family Part entered an order granting Sue physical custody of Aaron so long as they remained in the Isaiah House program. Sue was referred to Dr. Anice George, a clinical psychologist, for psychological evaluation. Dr. George recommended that Sue receive long term individual therapy, a parenting group course, in-home support, and placement with Aaron in a therapeutic facility.
Sue was instructed that she was not to leave Aaron unsupervised in Pearl's care because Pearl tested positive for illegal substances. Sue was also referred to enroll in a G.E.D. course at Youth Build Newark. Between late February and August 2008, several incident reports were filed by Isaiah House counselors, noting that Sue consistently violated the program's rules by leaving with Aaron to spend time with her boyfriend, Michael, and her mother, Pearl. Another report noted that Sue was not attending her required parenting skills classes.
On August 26, 2008, DYFS filed an amended verified complaint under N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12 alleging that Pearl had tested positive for cocaine and therefore she is not an appropriate caregiver for Aaron. It further stated that Sue continued to remove him from Isaiah House without the program's consent. On that same date, the Family Part granted DYFS custody. Aaron was placed with Mr. C., a resource parent. Between March and October 2008, Sue was referred to enroll at three different high schools, although she never did. In September, she enrolled at Essex County College's Gateway to College Program, but she failed to regularly attend its classes and was dropped from enrollment.
On September 25, 2008, Aaron was returned to Sue's care at the Single Women in Transitional Housing Program (SWITCH), where Sue was placed after being terminated from Isaiah House. After Sue failed to bring Aaron to a doctor's appointment for a heart murmur, DYFS removed Aaron from Sue's custody, pursuant to a court order that again placed Aaron in Mr. C.'s care. Aaron has remained with Mr. C. to date.
On December 24, 2008, the court granted Sue extended visitation at SWITCH so she could spend the holiday weekend with Aaron. On December 26, DYFS filed a referral because Sue failed to timely return Aaron to DYFS's office.
In early January 2009, Sue began supervised visits with Aaron through Reunity House. On January 16, 2009, a permanency hearing was held, and the Family Part determined the goal to reunite Sue and Aaron within three to six months to be appropriate. In the months following the Christmas weekend incident, Sue continued to demonstrate disrespectful behavior at SWITCH, which included not reporting to the program classes, failing to perform daily chores, and disobeying curfew. On April 14, 2009, the SWITCH Program Director requested that Sue's enrollment be terminated because she "lacks motivation [and] has no personal goals towards education/employment." However, Sue remained there as a resident.
On August 11, 2009, Sue was terminated from receiving Reunity House's services because she failed to regularly attend her visitations with Aaron as well as her scheduled parenting group classes. She was thereafter referred to Family Connections for a parenting group program and therapy sessions, but was dismissed for failing to attend.
On September 29, 2009, the court held another permanency hearing, and found the goal of reuniting Aaron with Sue within three months to be appropriate. On October 20, 2009, Sue was referred to Tri-City People's Corporation for supervised visits with Aaron. These visits continued sporadically. In December 2009, Sue was registered to attend Essex County Community College, and she was scheduled to attend parenting and life skills classes as well as sessions with a new therapist.
On January 15, 2010, the court held a third permanency hearing, and found DYFS's new goal of terminating Sue's parental rights followed by resource parent adoption of Aaron to be appropriate. The court found that Sue is "not able to provide a stable environment for her child and she has yet to complete therapy and parenting services that have been arranged several times. [Michael] remains incarcerated and, prior to his incarceration, he did not want to be the plan [for custody]."
On March 4, 2010, Sue graduated from the Isaiah House's parenting series course, and received a certificate memorializing her completion. On March 5, 2010, DYFS filed a complaint for guardianship of Aaron pursuant to N.J.S.A. 30:4C-15, seeking termination of Sue and Michael's parental rights to Aaron. The court held a fourth permanency hearing on January 10, 2011, and found appropriate DYFS's goal of terminating Sue and Michael's parental rights and placing Aaron for adoption.
A five-day trial commenced on February 1, 2011, and continued on February ...