On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FG-06-35-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 10, 2012
Before Judges Ostrer and Kennedy.
Defendant,*fn2 R.F. (Rose)*fn3 , appeals from a September 30, 2011 judgment of guardianship, terminating her parental rights to her daughter, M.F. (Mary), born in 2008, after a three day trial conducted in July, August and September 2011. The Division's complaint was filed in May 2010. Mary has been in foster care since December 2008.
On appeal, defendant argues the Division failed to present clear and convincing proof justifying termination of parental rights under each of the four prongs of N.J.S.A. 30:4C-15.1(a)(1) to (4). In particular, Rose argues the court did not adequately consider placement of Mary with her maternal grandmother Rita as an alternative to termination of parental rights. See N.J.S.A. 30:4C-15.1(a)(3). She also argues the court gave too much weight to Rose's unsuccessful efforts to address her substance abuse, and too little weight to the harm Mary would suffer as a result of the termination of her ties not only to her mother, but her siblings and grandmother, as well.
We affirm substantially for the reasons Judge Harold U. Johnson expressed in his oral decision.
Rose was a persistent drug abuser. Born June 1985, she began using marijuana at age thirteen, and continued using drugs during the trial. Over the years, she abused Xanax, valium, cocaine and heroin. At age twenty, she was convicted of selling drugs. She attended multiple drug treatment programs. She completed one outpatient program in 2007, but the evidence at trial established that after relapsing, she failed to complete other programs, including one as recently as 2011. She tested positive for drug use on multiple occasions in 2008, 2010 and 2011. In June 2011, shortly before trial began, she admitted she was taking Percocet, using marijuana, and had been snorting heroin daily. She told an emergency room staff person she was using Percocet and heroin to try to cope with her depression, and had last used heroin the day before. A drug test conducted after the second day of trial in August 2011 revealed use of marijuana, cocaine and morphine.
The Division received multiple referrals regarding Rose and Mark in 2004. Rose's mother, Rita, testified she obtained a court order from another judge granting her custody of "the children" in 2004. In October 2005, notwithstanding Rita's custody, Rose admitted she physically abused Jerry, causing bruising on both his legs.
In May 2007, while Rita lived in a hotel, she allowed the two boys to live with Rose, notwithstanding the requirement that Rose's contact be supervised. During that time period, Rose struck Jerry in the eye with a hanger, causing permanent damage to his eye. Rose admitted to "blacking out" when enraged, and did not remember the details of her assault. Rita testified, "I'm not saying that I felt it was safe to leave [Rose] alone with the boys; but at the time she was going through the services. She was completing them. To my knowledge, I thought she was doing [what] she had to do."
Rose thereafter was prohibited from having any contact with the boys. Her sons were removed from Rita's custody as well, but they were returned to her in November 2007. In June 2007, Rose gave birth to Margaret, who was placed with her paternal uncle and his wife. Rose was ultimately convicted of third-degree aggravated assault and sentenced in April 2008 to probation conditioned on a sixty day jail sentence. By April 2008, Rose was permitted supervised visitation with the boys. Shortly thereafter, Mary was born, and Rose retained custody under Division supervision.
In 2008, Rose lacked stable housing, as she moved among multiple family members, friends, and a shelter. In mid-September 2008, Mary, then less than four months old, was removed when the Division learned she and Rose would be homeless. Mary was returned the next day when Rose moved in with a friend who agreed, pursuant to a safety protection plan, to supervise all contact between Rose and Mary. In December 2008, after Rose had repeatedly violated the safety plan, the Division removed Mary. Mary remained in the Division's custody and care. She was placed with the same paternal relatives who had custody of Margaret, but the family decided not to keep Mary. In May 2010, Mary was then placed with a new foster family, where she lived thereafter. Rose visited Mary under Division supervision, but sometimes did not attend. Mary's foster parents seek to adopt Mary and have also expressed their intention to maintain contact with Mary's sister, Margaret.
Rose also inconsistently attended behavioral health programs to address her anger and depression. She attended anger management classes through probation, received medication for anxiety and depression, and attended individual psychotherapy in 2008 with Scott Shafer, a licensed professional counselor. However, Shafer reported that Rose had made little progress that year. By the end of 2008, she reportedly missed sessions, and by mid-2009, she requested a different therapist, claiming her present therapist was biased against her. Shafer had terminated, and then rescheduled sessions with Rose twice, because of missed sessions, then terminated therapy for the third time in September 2010.
A psychological evaluation in January 2010 concluded Rose still needed individual psychotherapy if she was reunified with Mary. During an evaluation by James Loving, Psy.D., in September 2010, Rose reported she stopped attending counseling because she concluded that "whatever I was doing was not good enough." Because of her history of continued drug use and behavioral health issues, Dr. Loving opined that he could not support a reunification plan for Rose and Mary because Rose continued to pose significant risks, and had not made sufficient progress. In an evaluation with defense expert John Quintana, Ph.D., in January 2011, Rose misrepresented that she had abstained from drugs for two years. She then missed individual therapy appointments with a new psychological treatment provider in February 2011 and was terminated in May 2011 after additional absences.
Rose also failed to comply with court orders designed to protect her children. On November 16, 2009, Rose arranged to have Terry baby-sit her sons while the maternal grandmother with whom they resided was at work, in violation of a "no contact" order with regard to Terry. The "no contact" order was the result of a Division allegation that Terry sexually abused Jerry in 2006. In addition, Rose failed to adhere to the safety plan.
Both the Division's expert and defendant's expert opined at trial that Rose was not capable of parenting Mary. Dr. Loving listed the risk factors, including drug use, a history of depression, drinking, irresponsibility, and anger problems related to her mood and depression problems. Dr. Loving opined that notwithstanding these obstacles, Mary had formed a strong attachment to both Rose and Mary's foster parents, but both were insecure. He concluded that with the support of her foster parents, Mary could overcome the harm she would suffer from permanent separation from her mother. On the other hand, addressing the harm she would suffer if removed from her foster home was less certain. He stated that Mary needed permanence to form healthier attachments. He therefore supported termination of parental rights.
Defense expert Dr. Quintana, Ph.D., stated Rose needed further therapy. He testified that if Rose re-entered a substance abuse treatment program, showed a track record of negative drug screens and was making an effort at sobriety, then the process of reunification could continue. However, he would not recommend reunification if Rose were still using drugs. As mentioned, Rose withheld mention of her continued drug use during her evaluation with Dr. Quintana. Dr. Quintana also conducted a ...