October 16, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,*FN1 PLAINTIFF-RESPONDENT,
DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF O.D., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-14-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2012
Before Judges Parrillo, Sabatino and Maven.
Defendant C.D. appeals from the termination of her parental rights to her three-year-old daughter O.D. We affirm.
Defendant, who resided in the Bronx as of the time of trial, has a multi-decade history of drug addiction, prostitution, unstable housing and irregular employment, and has had her six other children removed from her care, five of whom involuntarily. O.D.'s foster mother has cared for O.D. since June 29, 2010, and wishes to adopt her.
By way of background, defendant, who was the victim of both physical and sexual abuse as a child, became a prostitute at age fourteen, and began selling herself for drugs after her abusive mother threw her out of the family home. Over the next seventeen years, defendant was repeatedly raped and beaten while, as she described it, "living the life." Eventually she maintained an apartment, where people paid her for sex and for a place to smoke crack cocaine. Defendant began having children by different drug dealers. She engaged in prostitution and smoked crack while her children were asleep in another room. She admits never having a "non-abusive, drug-free, enriching or enduring relationship with any of her sexual partners." Although defendant, who did not complete high school, occasionally worked, she was never able to stay employed for more than brief periods due to her drug addiction.
The Division of Youth and Family Services (Division) first became involved with then-twenty-six-year-old defendant on January 26, 2005, after police raided the Newark home where she was living with her boyfriend, A.C., and her three children at the time, D.D., Ty.D. and Ta.D. The police discovered narcotics and firearms in the home and arrested A.C. Although she denied it at the time, defendant later admitted that she was aware of the presence of drugs and weapons in the home. The children were removed the next day after a Division case worker stopped by for a follow-up visit and found that they had been left without supervision.
On July 14, 2005, defendant gave birth to a daughter, Q.D., who tested positive for cocaine and was immediately removed from defendant's care. The four children were not returned to defendant until July 28, 2006, after she successfully completed court-ordered substance abuse treatment.
On January 23, 2007, the Division received a referral indicating that defendant had tested positive for cocaine while giving birth that day to her fifth child, H.D. The Division subsequently learned that H.D. had also tested positive for cocaine, that nine-and-one-half-year-old D.D. had missed six consecutive days of school and was also unable to read, and that defendant had hit Ta.D. with a belt, bruising his face and ear. On January 30, 2007, all five children were removed from defendant's care, and defendant was again referred for drug treatment.
Defendant was initially compliant with treatment but then tested positive for cocaine on June 25, 2007, ceased attending her treatment sessions in August 2007, and was discharged from the program on August 31, 2007. At the time of this relapse, defendant was pregnant with her sixth child, J.D. The Division abandoned its plan to have defendant begin overnight weekend visitation with her children, and instead referred defendant to another substance abuse program on October 3, 2007. She attended the program for only a few days and was discharged for non-attendance on October 17, 2007. She tested positive for cocaine on October 8, December 3, and December 20, 2007.
On February 1, 2008, defendant gave birth to J.D., and again both mother and child tested positive for cocaine.
The Division filed a verified complaint for custody of J.D. on February 7, 2008, and then a guardianship complaint to terminate defendant's parental rights as to her five older children on March 26, 2008. At the same time, the Division referred defendant to Eva's Village in Paterson for another attempt at drug treatment. She remained in treatment for approximately ten months, but was ultimately discharged for non-compliance on January 30, 2009, after having stopped all treatment on January 9, 2009. During her treatment at Eva's Village, defendant had two positive urine samples and also failed to supply urine on a few days.
On April 3, 2009, the Division filed a separate guardianship complaint to terminate defendant's parental rights to J.D. due to her failure to complete her treatment at Eva's Village. The complaint pertaining to J.D. was not consolidated with the pending trial as to the older children.
Following a trial in absentia because defendant could not be located, on April 23, 2009, the court entered a judgment terminating defendant's parental rights as to D.D., Ty.D., Ta.D., Q.D., and H.D.*fn2 On February 19, 2010, defendant voluntarily surrendered her parental rights to J.D.
Meanwhile, after defendant was finally located on May 26, 2009, she was six months pregnant with O.D. and living with an unidentified man in Paterson. She had failed to obtain any prenatal care during this entire time because, by her own admission, she did not want to be tested for drugs. The Division subsequently assisted her in obtaining needed medication.
Defendant gave birth to O.D. in early September 2009. O.D. was deemed medically-fragile at birth due to her exposure to the HIV virus.*fn3 Shortly thereafter, the Division filed a verified complaint for custody of O.D. and on September 16, 2009, the court ordered that O.D. be placed in the Division's custody. Five days later, the Division placed medically-fragile O.D. at O'Neill House, a children's home affiliated with St. Joseph's Hospital, and provided defendant with supervised visitation.
Following O.D.'s birth, defendant was ordered to continue drug treatment at Paterson Counseling Center, and she was initially compliant. She also found housing minutes away from O'Neill House, and obtained a job working at night in Hackensack. She visited with O.D. almost every day. During this time, the Division's goal remained reunification.
Sometime thereafter, however, defendant secretly became involved in another abusive relationship with a "boyfriend" whom she permitted to reside with her. Moreover, the Division learned that after O.D.'s discharge from O'Neill House on February 24, 2010, and placement with N.B., who had adopted H.D. and was in the process of adopting J.D., defendant did not report for a urine screen and had missed three weeks of treatment sessions, which she was supposed to have completed in March 2010. And as late as April 19, 2010, defendant admitted that she had recently used three bags of cocaine. She also told a Division worker that a boyfriend who had been living in her home and with whom she had been involved since her pregnancy with O.D. had beaten her before moving out, and that he had gotten her car "taken away."
On May 20, 2010, the Division filed an amended verified complaint for custody of O.D., based upon defendant's relapse and entry into in-patient treatment. Shortly before, on May 3, 2010, the Division learned that defendant, on her own, had chosen and entered an in-patient treatment program located in the Bronx called New Life for Girls ("New Life"). This faith-based program, which required a minimum twelve-month commitment, did not perform regular drug testing and was not a typical program to which the Division would refer its clients. The same day the Division filed its amended verified complaint, defendant stipulated that her lengthy history of drug abuse and recent relapse had affected her ability to safely parent O.D., and that these acts constituted abuse and neglect. That same day, the court, relying upon N.J.S.A. 30:4C-15.1(d) and N.J.S.A. 30:4C-11.3(c), relieved the Division of its obligation to make reasonable efforts to reunify defendant and O.D. in light of the April 2009 termination of defendant's parental rights to five of her other children. Nevertheless, the court allowed visitation to continue provided that defendant arranged her own transportation to the Division office from the Bronx. The Division subsequently arranged for two one-hour visits per month.*fn4
At the permanency hearing on June 18, 2010, the court approved the Division's plan of terminating defendant's parental rights to O.D. so that she could be adopted. On June 29, 2010, physical custody of O.D. was transferred from N.B. to her sister J.B., who became licensed as a resource parent in hopes of adopting O.D. should she not be reunified with defendant. On August 5, 2010, the court terminated the abuse and neglect action, and that same day the Division filed an order to show cause and complaint for guardianship of O.D.
At the guardianship trial in June 2011, the Division produced Dr. Donna LoBiondo, a psychologist, who evaluated defendant on September 18, 2008, December 1, 2009, and December 17, 2010, and also performed bonding evaluations with O.D. in April and May, 2011. As of her last evaluation of defendant, Dr. LoBiondo concluded that defendant could not safely parent O.D. Defendant was still in the heavily supervised second phase of the New Life program, and it would be premature to return O.D. to defendant at that point because it had only been seven months since defendant's last relapse, her addiction was of a chronically relapsing type, and defendant's sobriety had not been tested under the stresses of normal life.
According to Dr. LoBiondo, it did not appear that the New Life program was specifically geared towards substance abuse or employed providers with appropriate credentials. Consequently, defendant was at tremendous risk for relapse because of her past history, lack of treatment, and depression. She had not, according to Dr. LoBiondo, "inoculated herself against relapse." Because of defendant's lengthy history of addiction, she needed to prove that she could maintain her sobriety, plus stable housing and employment, for at least one year after completing the New Life program.
From her bonding evaluation, Dr. LoBiondo concluded that O.D. was attached to her foster mother, whom she viewed as her psychological parent. In contrast, O.D. viewed defendant as just a friendly adult, not a parent figure. Dr. LoBiondo explained that O.D.'s attachment to her foster mother would continue to grow during the time it would take for defendant to engage in therapy and prove herself in a real-life setting. The older O.D. became, the more detrimental it would be to sever her relationship with her foster mother. Dr. LoBiondo opined that it would not be in O.D.'s best interest to separate O.D. from her foster mother. On the other hand, the loss of her relationship with defendant would not likely result in any significant or enduring emotional or psychological harm to O.D. Dr. Robert Miller, a psychologist, evaluated defendant and also performed bonding studies at the behest of the law guardian. Dr. Miller found no evidence that New Life had provided defendant with therapy addressing her dissociation, poor coping skills, depression and anxiety. Dr. Miller concluded that defendant had repeatedly put her children at risk because of her impulsivity, poor judgment, emotional instability, substance abuse, prostitution, depression and post-traumatic stress disorder. Defendant's 2010 relapse was significant because she was not under the normal stresses of parenting at the time. Because defendant's underlying emotional problems had not been addressed, she remained "fragile" in her sobriety, and was at high risk of relapsing. She needed years of treatment and sobriety. In sum, Dr. Miller concluded that placement of O.D. in defendant's care would result in a significant risk of harm to O.D.'s safety, care and emotional development.
As a result of a bonding evaluation on April 4, 2011, Dr. Miller determined that O.D. viewed her foster mother as the most reliable and consistent adult in her life, while her attachment to defendant was at best insecure. According to Dr. Miller, defendant ruptured the bond she shared with O.D. when she began treatment at New Life and consequently, severing O.D.'s remaining attachment to defendant would not harm the child. In contrast, breaking the bond with her foster mother would undermine O.D.'s long-term cognitive and emotional development.
Defense psychologist Dr. Curtis Branch evaluated defendant in Spring 2011. He believed that defendant should be in intensive psychotherapy for at least one year, and would have to be completed prior to any reunification with O.D. His bonding evaluation revealed that O.D. was "profoundly" attached to, and very responsive towards, her foster mother, viewing the foster mother as her mother. However, because O.D. was so well developed, confident and trusting, Dr. Branch believed that a disruption of her bond with her foster mother would not produce traumatic emotional upheaval, although she would have some transient episodes of clinical depression. Dr. Branch did not perform a comparison bonding evaluation of defendant and O.D., and admitted not being aware of some of the negative features of defendant's background.
Defendant testified that she was living rent-free in a one-room apartment in the Bronx awaiting section 8 housing, and expected to move into a one-bedroom apartment on July 15, 2011. If O.D. were returned to her custody, she would be eligible for a two-bedroom apartment. Defendant was also presently receiving a monthly cash subsidy of $340 and monthly food stamps of $200 from the government. She was regularly meeting individually with a counselor for relapse prevention, and was also attending other group counseling sessions addressing women's wellness issues, apartment living, and stress reduction.
At the close of evidence, the judge issued an oral decision terminating defendant's parental rights to O.D., finding that the Division satisfied all four prongs of the statutory "best interests" test, N.J.S.A. 30:4C-15.1(a). As to the first prong, the court found that defendant was at an extreme risk of relapse because of her "utter lack of insight" into what had led to her addiction, and until defendant successfully completed years of psychotherapy, she would continue to pose a danger to O.D. and any other child she might have.
As to the second prong, the court concluded that, until she underwent psychotherapy, defendant could not eliminate the harm facing O.D. Her current sobriety was commendable but was not the most significant or difficult task before her. The New Life program had simply encouraged her to forgive herself and move forward. This superficial, short-term, band-aid-type approach had not assisted her in gaining any insight into the true reasons for her problems. Defendant needed proper therapy from a well-qualified individual before she could be trusted to safely parent O.D.
As to the third prong, the court noted that, as of May 20, 2010, the Division had been relieved of the duty to make reasonable efforts to reunify defendant and O.D. due to the involuntary termination of defendant's parental rights to five of her other children.
Lastly, as to the fourth prong, the court accepted the opinions of Drs. Miller and LoBiondo that it would be catastrophic for O.D. to be separated from her foster mother. It rejected Branch's opinion to the contrary as "relatively uninformed." The court was satisfied that it would be compounding the risk of further trauma to O.D. by placing her with defendant. It was unwilling to expose O.D. to the risk that defendant would relapse. As such, because termination would not do more harm than good, the court ruled that the Division had proven the fourth prong by clear and convincing evidence.
On appeal, defendant raises the following issues for our consideration:
I. SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST TO SUPPORT THE COURT'S FINDINGS THAT THE BEST INTERESTS TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.
A) THE COURT'S FINDINGS THAT C.D. WAS UNABLE TO OR UNWILLING TO ELIMINATE THE HARM FACING THE CHILD AND UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME ENVIRONMENT WERE ERRONEOUS.
B) DYFS FAILED TO SATISFY THE REASONABLE EFFORTS STANDARD
BECAUSE IT FAILED TO PROVIDE SERVICES THAT WERE REASONABLE UNDER ALL THE CIRCUMSTANCES AND CEASED PROVIDING FULL SERVICES PRIOR TO ISSUANCE OF THE NO REASONABLE EFFORTS ORDER.
C) C.D. IS ENTITLED TO A REVERSAL BECAUSE THE EVIDENCE WHICH WAS PRESENTED DID NOT SUPPORT A FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
II. THE JUDGE ERRED BY ALLOWING IMPROPER EVIDENCE INTO THE RECORD AT THE TERMINATION HEARING.
We find no merit to these contentions and affirm substantially for the reasons stated by Judge de la Carrera in his comprehensive oral decision of June 27, 2011. We add only the following comments.
By her own admission on May 20, 2010, defendant's long history of drug abuse and recent relapse had affected her ability to safely parent O.D., and that these acts constituted abuse and neglect. This stipulation, coupled with her extensive pattern of prostitution, chronic relationships with abusive men, and prior neglect of her other children resulting in the involuntary termination of her parental rights, well established that O.D.'s safety, health and development had been and would continue to be endangered by defendant.
Equally clear is that the court's finding that defendant had not yet received the treatment she needed was properly based upon the testimony of all three experts who agreed that defendant did not yet possess any insight into her addiction and was in need of one or more years of psychotherapy to identify and overcome the serious emotional problems that prompted her to abuse drugs. Additionally, the court's focus on defendant's history of relapse into substance abuse was not inappropriate where, as all the experts agreed, defendant had not yet "inoculated herself against relapse," or acquired insight as to what she could do to "interrupt the cycle of addiction."
Similarly appropriate was the court's May 20, 2010 entry of a "no reasonable efforts" order based on defendant's actions, coupled with the involuntary termination of defendant's parental rights to five of her six children. Despite this order, the Division continued to assist and facilitate defendant's visitation with O.D. Moreover, after her April 19, 2010 disclosure of relapsing, it was defendant who failed to work with the Division to find another suitable program, but chose instead to enter the New Life program without consulting the Division caseworkers, and thus geographically separated herself from O.D. for an extended period of time.
Lastly, all of the experts here agreed that defendant was not presently ready to safely parent O.D. and that Drs. LoBiondo and Miller opined it was not clear when she would be ready to do so. According to Drs. LoBiondo and Miller, O.D. no longer regarded defendant as a parental figure and would not be significantly harmed by the loss of a relationship with her. Rather, O.D. had bonded with her foster mother, and severance of that bond, which would only grow stronger during the time it would take for defendant to engage in therapy and prove her sobriety in a real-life setting, would cause O.D. serious lasting harm. We also note that the Law Guardian has advanced the same position on behalf of O.D.
Based on these facts, we are satisfied that the Division satisfied all four prongs of the "best interests" test by clear and convincing evidence. N.J.S.A. 30:4C-15.1(a); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
As a final contention, defendant argues the lower court committed reversible error by admitting improper hearsay in the way of drug test results and records from drug treatment providers. We disagree.*fn5
Rule 5:12-4(d) allows the Division to submit into evidence reports by staff personnel or professional consultants "provided the documents satisfy the requirements of the business records exception, N.J.R.E. 803(c)(6) and 801(d)." Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 173 (App. Div. 2012); N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 129 (App. Div. 2010). N.J.R.E. 803(c)(6), in turn, provides the definition of a business record that constitutes an exception to the hearsay rule:
A statement contained in writing or other record of acts, events, conditions, . . . made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, [is admissible] if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.
Further, N.J.R.E. 801(d) provides that a "business" includes "every kind of business, institution, association, profession, occupation and calling, whether or not conducted for profit, and also includes activities of governmental agencies."
Under these evidence rules, a party seeking to introduce a hearsay statement under the business record exception must demonstrate that  "the writing [was] made in the regular course of business,"  the writing was "prepared within a short time of the act, condition or event being described," and  "the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence." [N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 347 (2010) (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985)).]
Moreover, N.J.R.E. 803(c)(6) expressly subjects the admissibility of opinions and diagnoses contained in otherwise admissible business records to the added requirements of N.J.R.E. 808, which provides:
Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness. [See M.G., supra, 427 N.J. Super. at 174.]
While the Division may not have established all the prerequisites for the admission of the challenged documents under N.J.R.E. 803(c)(6), nonetheless, their admission did not constitute reversible error because the records were either cumulative to other evidence presented in the case, harmless, or beneficial to defendant's case.
Specifically, P-8 merely indicated that defendant was admitted into the Options substance abuse treatment program on February 15, 2007, while P-9 simply reflected that she was discharged from the program on August 31, 2007 for non-attendance. Defendant, in her testimony, confirmed that she attended the Options program for a period in 2007. P-10 and P-12 were positive drug test results from BioReference Laboratories for urine samples taken at the Division office on October 3, 2007, December 3, 2007, and December 20, 2007. P-11 was a discharge summary dated November 15, 2007, from the Challenge program indicating that defendant was discharged for non-attendance on October 17, 2007. During her testimony, defendant confirmed that she relapsed during her pregnancy with J.D. P-13, P-14, P-15, P-17, P-22 and P-23 were records from Preferred Children's Services and Eva's Village, spanning the period from February 5, 2008, through January 30, 2009, indicating that defendant was accepted into the program, was compliant with treatment until January 9, 2009, and was discharged on January 30, 2009. Division caseworkers and defendant all testified that defendant received treatment at Eva's Village before being discharged in January 2009. P-28 was a Preferred Children's Services document indicating that defendant was admitted into Level I substance abuse treatment at Paterson Counseling Center. A Division caseworker testified to the same effect.
P-29, P-37 and P-44 were negative drug test results from BioReference Laboratories for urine samples taken at the Division office between July 16, 2009, through September 9, 2009, October 23, 2009, through November 6, 2009, and January 6, 2010, through February 24, 2010. These test results were favorable to defendant and confirmed the periods of sobriety reflected in the Division contact sheets admitted into evidence.
P-50, misidentified by defendant as a hospital report, was actually a letter dated April 28, 2010, from a social worker at O'Neill House to a Division caseworker detailing defendant's altered behavior, missed visitation and admissions of cocaine use throughout April 2010. All of the information contained therein was set forth in the Division caseworker's contact sheets which were admitted into evidence.
As to the relevancy of reports, drug screens and discharge records by service providers contracted by the Division and prepared prior to O.D.'s birth, suffice it to say they demonstrated defendant's extensive history of substance abuse problems and the Division's repeated efforts in assisting her in addressing her condition.
We therefore find no reversible error in admitting the challenged hearsay evidence.