On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-162-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2012 -
Before Judges Axelrad, Nugent and Haas.
Defendants S.S. ("Susan") and J.A. ("Jacob") appeal from the October 21, 2011 order terminating their parental rights to their three children, a boy J.C.S. ("John") born on November 17, 2002, and a boy J.Z.A.S. ("James") and his twin sister Y.R.A.S. ("Yasmin") on May 20, 2005.*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm.
This is the second time this family has been before us. Earlier this year, we reversed the trial court's decision that Susan had abused and neglected the children by leaving them with relatives for a three-day period, two positive marijuana screens within one week of each other, and her temporary lack of housing. N.J. Div. of Youth & Family Servs. v. S.S.,*fn2 No. A-4372-10 (App. Div. 2012). We set forth the underlying facts from that opinion.
The Division of Youth and Family Services*fn3 (Division) has been involved with Susan and Jacob since February 2007, when it removed the children from Susan after Jacob hit Yasmin with a belt. (Slip op. at 2-3). The children spent almost a year in foster care. Id. at 3. The Division substantiated Jacob for physical abuse, and Susan for neglect for her failure to protect Yasmin. Ibid. On May 16, 2007, Jacob pled guilty to fourth-degree abuse of a child under N.J.S.A. 9:6-1 and -3, and was sentenced to five years probation with conditions, including supervised visitation with Yasmin. Ibid.
On December 15, 2009, the Division filed a verified complaint and Order to Show Cause against Susan for abuse and neglect of her children under Docket No. FN-04-282-10, which was amended on March 9, 2010. Ibid. The complaint was limited to three allegations, namely, Susan's unstable housing, her use of marijuana on two documented occasions, and an incident on December 14, 2009, where she could not be located by the Division. Ibid. After a fact-finding hearing on March 17, 2010, the trial judge found the Division proved by a preponderance of the evidence that Susan had abused or neglected her children based upon these incidents. Id. at 6.
Susan filed an appeal and we reversed in an unpublished opinion. Based solely "on a snapshot of the case as presented on the record" at the March 17, 2010 fact-finding hearing, we held that the Division failed to meet its burden of proving abuse and neglect based upon the three incidents involved at that point in the proceedings. Id. at 13, 25. The evidence presented by the Division was largely hearsay and, we concluded, it failed to demonstrate the "level of 'gross negligence' or 'recklessness'" necessary to substantiate a finding of abuse and neglect regarding any of the three incidents. Id. at 15.
While the appeal of the abuse and neglect determination was pending, the Division continued to attempt to provide services to both parents in order to seek a reunification of the family. Ultimately, however, the Division filed an action seeking to terminate Susan and Jacob's parental rights. The Division developed the following proofs at the guardianship trial.
After the children were removed, Susan was referred to Velez Professional on March 3, 2007 for parenting classes. However, she was discharged from this program on April 26, 2007 for non-compliance. She received a second referral to the program on July 17, 2007, but she only attended six of the sixteen scheduled sessions.
Susan was also accepted into the Rainbow of Hope mentoring program in May 2007. However, she was terminated from this program in July 2007 for non-attendance. She did not respond to a request that she submit certain documentation in order to return to the program.
Compliance reviews were held on September 12, 2007 and October 11, 2007. Susan was ordered to attend substance abuse treatment, submit to random urine screening, attend parenting skills training, and attend counseling. On November 21, 2007, however, Susan did not attend her parenting skills class. Jacob was in jail at this time and he was ordered to contact the Division after he was released.
Another compliance review and a permanency hearing were held on January 14, 2008. Susan was now in compliance with services. She agreed to participate in a Mother and Child program and Horizon counseling. Jacob was still incarcerated at that time. Because Susan had agreed to participate in services, the Division's plan was to possibly return the children to her if Susan's progress continued over the next three months.
On February 1, 2008, Susan gave birth to a fourth child, J.S. ("Jordan"). However, Jordan died at the age of three months while in the care of a friend. The Gloucester County Prosecutor's Office concluded the child's death was accidental. (Slip op. at 2 n. 1).
Following a compliance hearing on July 1, 2008, the court ordered that, because Susan had complied with services, the children should be returned to her no later than July 18, 2008. The court further ordered that Jacob was not permitted to be in Susan's home or to have any contact with the children without Division supervision. On September 22, 2008, the litigation was terminated, although the Division continued to provide counseling services to Susan. On November 26 and again on December 3, 2008, Susan did not attend her counseling services.
On January 15, 2009, the Division received an anonymous referral that Jacob was out of jail, but had violated the conditions of his parole. The report also stated that Jacob was staying in Susan's home, which was a violation of the court's prior order and a violation of Jacob's parole. The allegations of neglect were substantiated against both parents. Jacob was re-incarcerated on a parole violation after he tested positive for marijuana and admitted to being in Susan's home with the children. While incarcerated, he completed treatment for substance abuse and anger management.
Jacob remained in jail until April 16, 2009. Two days later, the Division learned Jacob had again been in the home with Susan and the children. The Division reported this to Jacob's parole officer, and Jacob was again found in the home on April 28, 2009. He was arrested for violating his parole on April 30, 2009. Jacob completed his parole, and was released from jail, on May 6, 2009.
At a home visit on May 27, 2009, the Division again found Jacob in the home. He agreed to participate in services. However, he did not attend a scheduled appointment for an evaluation with the Center for Family Services (CFS). The appointment was rescheduled for June 23, 2009, but Jacob did not attend.
On June 26, 2009, the Division was notified that Susan's home had sustained fire damage and she and the children were homeless. She was moved to a motel. That day, a Division caseworker visited and the children were not present. Susan stated they were with relatives. Susan checked out of the motel on June 29, 2009 and the Division was unable to locate her, Jacob or the children. The Division later learned the family had moved to New York, and a case was opened for them in that state.
On November 23, 2009, the Division received a referral stating that Susan and the children were now back in Williamstown, New Jersey and living with a friend. The friend reported that Susan was smoking marijuana and having sex for money. A Division caseworker went to the friend's home and found Susan. She told the caseworker the children were sometimes living with her and sometimes staying with relatives in Sicklerville.
On December 11, 2009, a caseworker came to transport Susan for a drug screen. Susan told the worker she would test positive for marijuana.
On December 14, 2009, the Director of the Pfeiffer Community Center in Williamstown, where Yasmin and James attended daycare, called the Division to report concerns about the children. Yasmin appeared to have ringworm and James' ear appeared to be infected. The relatives who were caring for them told the Director that Susan had abandoned the children.
An emergency removal of the children was conducted and they were placed in foster care. On December 16, 2009, the trial court found the removal was appropriate. Susan was ordered to complete a substance abuse evaluation and a psychological evaluation. A urine screen taken that day in court was positive for THC.
On January 5, 2010, Susan did not attend the scheduled evaluation at CFS. On January 20, 2010, the substance abuse evaluation was held. Susan tested positive for benzodiazepines. She was again referred to CFS, but failed to attend two appointments. Susan was terminated from CFS for non-compliance.
On March 9, 2010, Susan attended a psychological evaluation with Dr. Larry Seidman. She was diagnosed with "dysthymic disorder, panic disorder with agoraphobia, [PCP] abuse, cannabis abuse, and avoidant personality disorder." Dr. Seidman recommended that Susan complete an intensive outpatient drug program. He also opined that Susan "was not ready or capable of assuming the custodial role with her children."
On March 12, 2010, Susan successfully completed parenting classes. On March 17, 2010, the court held a fact-finding hearing, which resulted in the order substantiating abuse and neglect, which we reversed in our April 4, 2012 decision.
Susan did not show up for a drug evaluation on April 4, 2010. However, she was seen by a psychiatrist at CFS's Family First program on April 16, 2010 and was prescribed medications.
On April 24, 2010, Jacob was arrested for aggravated assault against Susan. She obtained a temporary restraining order against him on April 25, 2010. In her complaint, Susan referred to prior, unreported assaults against her by Jacob.
On May 15, 2010, Susan was discharged from domestic violence counseling at the Camden County Women's Center for non-compliance. On June 30, 2010, she was terminated from the ...