On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-81-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
N.C.C. is the biological parent of D.M.L., born August 15, 2008, and A.C., born August 4, 2010.*fn2 She appeals from the Family Part order terminating her parental rights, following a four-day trial, to both children and awarding guardianship to plaintiff, the Division of Youth and Family Services (Division). She specifically challenges the court's findings as to the first three prongs of the "best interests of the child" standard, N.J.S.A. 30:4C-15.1a, which controls such proceedings. In addition, she contends the court erroneously shifted the burden of proof to her to demonstrate her sobriety.
We reject N.C.C.'s arguments. We affirm substantially for the reasons expressed by Judge Mary Gibbons Whipple in her cogent and well-reasoned statement of reasons appended to the March 22, 2011 order of judgment.
At trial, the court heard testimony from Division caseworkers, experts and N.C.C. Additionally, the court admitted into evidence, without objection, the Division's case file. The record reveals the Division's involvement with N.C.C. commenced on August 19, 2008, four days after she gave birth to D.M.L. Medical staff contacted the Division and reported that both mother and child tested positive for opiates and that the child was being treated for severe withdrawal symptoms. N.C.C. told hospital staff that prior to giving birth, she took two OxyContin pills, prescribed to D.M.L.'s father, T.J.L., because she was in pain due to a pregnancy rash. When pressed, she indicated she took the OxyContin for one week. D.M.L. was diagnosed with Neonatal Abstinence Syndrome*fn3 and required medication to wean her off opiates and manage her withdrawal symptoms. D.M.L. remained hospitalized for two months.
On August 25, 2008, the Division referred N.C.C. and T.J.L. for a substance abuse evaluation with the Division's Certified Drug and Alcohol Counselor (CADC). N.C.C. completed her substance abuse evaluation on September 5, 2008. The CADC determined that N.C.C. qualified for Level III inpatient substance abuse treatment and recommended that she continue with the methadone maintenance program, in which she had enrolled, until a bed became available at an inpatient facility.
On September 24, 2008, the trial court granted the Division care and supervision of D.M.L. and granted N.C.C. legal and physical custody, "as long as [N.C.C.] resides with [N.C.C.'s father, M.C.,] and remains under [M.C.]'s [twenty-four-hour] supervision while caring for the child (or) enters a Mommy and Me Program." D.M.L. was discharged from the hospital on October 10.
On October 16, 2008, N.C.C. and T.J.L. appeared with counsel for the order to show cause hearing. N.C.C. waived her right to a fact-finding hearing and stipulated that her drug use posed a risk of harm to D.M.L. The Division retained care and supervision, and N.C.C. was permitted to retain legal and physical custody, provided she continued to reside with her father, M.C., remained under his "constant supervision," and tested negative "for all illicit substances[.]" The court ordered N.C.C. to undergo psychological and substance abuse evaluations and treatment.
N.C.C. enrolled in and appeared at Family Drug Court*fn4
on October 22, 2008. She was ordered to attend an inpatient
treatment program, as recommended by her substance abuse evaluation,
and to contact Seabrook House*fn5 to schedule an
On October 24, 2008, N.C.C. and T.J.L. appeared at the Center for Evaluation and Counseling (CEC) for a psychological evaluation. N.C.C. reported that she began using heroin when she was twenty-one years old and was using methadone for more than nine months before she became pregnant with D.M.L. She, however, reported she detoxified completely by December 13, 2007, as she did not want to be on methadone while pregnant. N.C.C. also indicated she had enrolled in the Morris County Aftercare Center's methadone maintenance program two months earlier because the Division told her she needed to be in a rehabilitation program. In a report dated December 3, 2008, the CEC concluded that N.C.C. and T.J.L. were "high risk parents for child neglect due to severe drug addiction." Additionally, the report noted:
[N.C.C.] took no responsibility for her daughter's withdrawal from opiates upon birth. She was a defensive, inconsistent, unreliable historian regarding the extent of her drug use during pregnancy. [N.C.C.] minimized the impact of her drug addiction on her life and on her child. She has a history of maternal abandonment, exhibits poor judgment as well as narcissistic personality traits, and tends to pursue drug use at the expense of the potential[ly] harmful consequences. [N.C.C.] is an immature parent who presents a risk for irresponsible parenting.
The CEC recommended that N.C.C.'s and T.J.L.'s parenting continue to be supervised at all times and recommended substance abuse treatment, random urine monitoring and psychotherapy.
On October 28, 2008, N.C.C. tested positive for marijuana and methamphetamines.*fn6 On October 30, she was reevaluated by the CADC to determine if the inpatient treatment recommendation was still valid. The CADC again recommended an inpatient treatment program and also recommended that N.C.C. continue with her methadone maintenance program until a bed became available at an inpatient facility. The CADC noted that N.C.C. had contacted Seabrook House but provided them with inaccurate information. At a Division meeting shortly thereafter, N.C.C. expressed her disagreement with the CADC inpatient treatment program recommendation. She refused to comply and indicated that she would obtain her own substance abuse evaluation and "treatment modality."
On December 8, 2008, Seabrook House informed the Division and N.C.C. that she would be accepted into its treatment program on February 9, 2009, if she immediately agreed to do so. She declined and was discharged from the Family Drug Court program. Additionally, on December 18, 2008, the court restrained N.C.C. from her father's home and transferred legal and physical custody of D.M.L. to him. N.C.C. was permitted supervised visits.
On January 29, 2009, the court conducted a compliance review hearing. The court permitted N.C.C. to return to her father's home, but ordered that he supervise all visits between N.C.C. and D.M.L. The court also ordered N.C.C. to comply with a hair follicle test and random urine screens. By then, N.C.C. had enrolled in an intensive outpatient treatment program at People Helping People, which she completed on May 18, 2009. She continued attending the Morris County Aftercare Center for methadone maintenance.
At a May 21, 2009 compliance review hearing, the court returned joint legal and physical custody of D.M.L. to N.C.C. and her father, with care and supervision remaining with the Division. The court permitted unsupervised contact with D.M.L. but did not permit N.C.C. to take D.M.L. outside of M.C.'s home.
That summer, the relationship between N.C.C. and her father began to deteriorate, culminating in N.C.C. removing him as an emergency contact person at the day care center D.M.L. attended. M.C. complained to the Division about N.C.C.'s behavior, and N.C.C. contacted the Division to report that her aunt and uncle, who were assisting her father in caring for D.M.L., abused prescription medication.
Because of the escalating friction between N.C.C. and M.C., the court conducted an emergency hearing on August 6, 2009. At its conclusion, the court ordered that sole physical custody of D.M.L. be returned to M.C., and it restrained N.C.C. from living in M.C.'s home. The court granted N.C.C. unsupervised visits, but no overnight visits were permitted. The court also ordered N.C.C. to undergo an updated psychological evaluation.
N.C.C. complied with the court's order and submitted to a psychological evaluation on August 11, 2009. In a preliminary report, the CEC found that "[N.C.C.] continue[d] to be a high-risk parent for child neglect." During the evaluation, N.C.C. reported that she had begun seeing a psychotherapist one week earlier and had been sober since August 2008. N.C.C. was confronted about an earlier incident involving her failure to fill a prescription for D.M.L. and allegations that she provided the daycare with spoiled formula. She denied responsibility, and the report noted that N.C.C.'s account of the events involved a "failure to take responsibility for her actions and was contradicted by collateral information from her pediatrician and daycare provider." The CEC opined:
[N.C.C.] continues to present as narcissistic, immature, and irresponsible. She has difficulty placing the needs of others before her own . . . . [N.C.C.] has little regard for the truth, engages in deception, acts on impulse without deliberation for the consequences of her actions, and does not experience sufficient remorse. [N.C.C.] has reportedly made progress with regard to her heroin addiction and has been compliant with methadone maintenance. However, [N.C.C.'s] potential for child neglect is associated with her irresponsibility, and characterological difficulties, in addition to her history of drug addiction.
The CEC concluded that N.C.C. was not prepared to serve as the sole caretaker for D.M.L. and recommended that she seek substance abuse recovery services, psychotherapy, parenting skills classes, and undergo a psychiatric evaluation.
On September 22, 2009, N.C.C. completed her methadone maintenance program at the Morris County Aftercare Center and was reportedly completely detoxified from methadone. At a compliance review hearing scheduled for October 8, 2009, N.C.C. was screened for drugs and tested positive for opiates. Consequently, the court granted the Division's application for legal and physical custody of D.M.L. N.C.C. was again ordered to undergo a psychiatric evaluation and an updated substance abuse assessment, and to submit to random urine screenings. All visitation was to be supervised by the Division.
N.C.C. missed the first two weeks of scheduled visitation and failed to show up for the psychiatric evaluation that the Division arranged for her with the Family Enrichment Program (FEP) in late October. The FEP tried for almost one month to contact N.C.C. to ...