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New Jersey Division of Youth and Family Services,*Fn1 v. S.K

December 20, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-57-10.

Per curiam.



Submitted October 30, 2012 -

Before Judges Alvarez, Waugh, and St. John.

Defendant S.K. (Susan*fn2 ) appeals the Family Part's June 30, 2011 order terminating her parental rights to her daughter F.M.K. (Frances), who was born in May 2009.*fn3 She also appeals the March 30, 2012 order determining that she failed to demonstrate that her trial attorney provided constitutionally ineffective assistance of counsel. We affirm both orders.


We discern the following facts and procedural history from the record on appeal.

Susan was thirty-eight years old when she gave birth to Frances at a hospital in Somerset County on May 4, 2009. Following her birth, Frances displayed symptoms of drug withdrawal, including tremors, seizures, vomiting, and loose bowel movements. She tested positive for the opiate morphine, and was placed on phenobarbital to alleviate withdrawal symptoms.

A hospital social worker noted that, although Susan appeared to have developmental delays, her interactions with Frances were "appropriate." Another social worker observed that Susan was "appropriate, loving and gentle with her newborn." Nevertheless, the birth was reported to the Division because of the withdrawal symptoms and positive drug test.

Frances remained hospitalized for three weeks. She was then placed in the care of a specialized foster home because of her elevated heart rate, rapid breathing, exaggerated startle reflex, and high-pitched screaming between feedings. Frances's maternal great aunt, Carol, eventually assumed care of Frances in June 2009. Carol is now seeking to adopt Frances.

Prior to any attempt at reunification, the Division expected Susan to attend a parenting skills course and "to complete a substance abuse evaluation and follow-up substance abuse treatment, along with a psychological evaluation to determine parenting ability and service needs." Susan agreed to comply with services recommended by the Division.

Susan had a lengthy history of drug use. In her middle twenties, she used cocaine and marijuana socially. Susan admitted that she used heroin on and off over a three-year period in her early thirties. She had stopped using heroin on her own and had remained off drugs for approximately seven years.

After a motor vehicle accident and the death of a cousin, Susan started abusing Percocet. She enrolled herself in a methadone maintenance program, Organization for Recovery (OFR), in September 2008. The OFR counselor's plan was to wean her from methadone.

Susan discovered she was thirteen weeks pregnant in November 2008. Although she wanted to stop using methadone, the clinical staff instructed her not to do so because a miscarriage could result. Susan tested positive for methadone and opiates on December 2, 2008, February 11 and 20, March 27 and 31, April 3, and May 11, 2009, according to OFR's toxicology screenings.

Susan completed a comprehensive drug and alcohol evaluation at Trinitas Hospital in June 2009, following Frances's birth. The hospital staff recommended that she attend the Women's Addiction Services Program five days a week. Treatment was scheduled to begin on June 2. However, Susan's urine screen that day tested positive for benzodiazepines, opiates, and methadone. Although she initially claimed she had not used drugs for at least two to three weeks, she subsequently admitted to taking a benzodiazepine pill a few days earlier. However, she was unable to explain the methadone or opiates. Program staff told Susan that she could not participate in the daily program until her urine drug screen tested negative. She was offered a detox referral in the interim, but refused. Susan was also informed that she could return to provide another screen test. She promised to return a few days later but did not show up.

On June 10, Susan contacted one of the clinicians at Trinitas, apologized for her absence, and said she would come in the next day. She did not. Susan then called on June 29, explaining that she had been depressed but would appear to submit a urine sample. She did not do so. On July 14, Susan's court-ordered urine screen tested positive for morphine.

Susan contacted Trinitas again on August 10, and informed the clinician that she continued to use opiate pills on a daily basis and needed detox. The clinician explained that Trinitas had an "ambulatory detoxification program" for which she could be assessed. Susan did not follow up with the ambulatory program, and never started treatment at Trinitas. She told her case worker that she had transportation problems, but declined his offer of assistance. The substance abuse coordinator assigned by the Division closed Susan's case in mid-August and recommended that the Division send Susan for intensive outpatient treatment. In late August, Trinitas informed the Division that Susan had not complied with any of its instructions or recommendations, and suggested that Susan receive inpatient services.

Susan was briefly hospitalized on August 16. She admitted to using heroin for the first time in six years, and tested positive for opiates and benzodiazepine. On September 9, Susan enrolled in a program for individual addiction treatment sessions at JFK Medical Center (JFK), which was closer to her home than Trinitas. She tested negative at her initial intake. She tested positive for alcohol on September 23, and positive for methadone, cocaine, and opiates on October 8. In addition, Susan provided water instead of a urine sample on October 22.

When asked about the test results by the Division caseworker, Susan responded that she did not know why she tested positive for cocaine. She denied submitting water instead of a urine sample, but admitted to treating migraines with Percocet that she said her doctor had prescribed. However, the doctor had moved away and Susan was unable to explain how she could have obtained such a prescription. The case worker informed Susan that JFK recommended inpatient treatment, but Susan declined.

On November 17, Susan's court-ordered urine screen tested positive for benzodiazepine and morphine. She did not attend a November 30 substance abuse assessment. Susan's court-ordered urine screen tested positive for methamphetamine on March 23, 2010. She left the courthouse without permission when ordered to undergo a second test.

On April 26, Susan was diagnosed as opioid dependent after a substance abuse evaluation based on self-reported information. The same report indicated that Susan said she was doing well in St. Michael Hospital's intensive outpatient program. St. Michael's subsequently referred Susan to the inpatient program at Sunrise House, which she attended from May 19 until June 16. According to her patient narrative, Susan had been using Percocet for six years and had started using OxyContin during the previous year.

Sunrise House reported the following to the Division:

She reported numerous aches and pains, requesting medications and bed rest. She was spoken to about this issue and agreed to refrain from requesting bed rest. She did show improvement towards the end of treatment, however, she continued to believe her physical discomfort still warranted bed rest.

[Susan] has shown difficulty accepting feedback. She has some limited cognitive abilities and tends to focus on one topic. She continues to believe her biggest problem is with DYFS. [Susan] showed limited insight and denied responsibility for her legal ramifications.

[Susan] struggled to fully participate and she required continued redirection. Her social skills are childlike and she used her cognitive limitations as excuses to avoid making changes.

[Susan] was unable to completely acknowledge that she needed to make changes in her behavior and attitude and develop coping skills to remain sober, in order to be the primary caregiver to her daughter.

Susan returned to St. Michael's for an outpatient intake appointment on June 17, but never returned for treatment.

In July, Susan enrolled herself at the Steps Recovery Center at JFK, which she was to attend three times a week for twelve weeks. She attended approximately half of her scheduled sessions in July and tested positive for opiates on July 15 and 26. She was discharged from the JFK program in September. JFK reported to the Division that Susan was still testing positive for benzodiazepine, and that she had tried to use someone else's urine for a screening.

Subsequently, Susan was referred to the Union County Psychiatric Clinic (UCPC) for outpatient drug treatment. Although she missed her initial intake appointment on December 7, Susan began the program on December 28. Between December 28, 2010, and February 3, 2011, Susan attended three sessions. She tested positive for benzodiazepines and opiates on December 28, but tested negative for drugs on January 20.

Between February 7 and May 31, Susan attended the UCPC program three days a week on a consistent basis. On May 31, her schedule was reduced to two days a week because of her compliance. Although she tested negative on February 8, March 14 and May 23, Susan tested positive for benzodiazepines on February 23, March 29, April 14, and May 10. UCPC's June report stated that "[Susan] currently reports 9 months clean and sober," a self description that was not consistent with the record of her test results at the program.

At the time the Division chose Carol as Frances's foster parent in May 2009, Susan had "a good prognosis of reunification" with Frances because she was "willing to comply with any services the Division recommends in order to be reunified with [Frances]." Susan completed a parenting skills course in June 2009. However, the course was not approved by the Division because it could not confirm the curriculum.

Both Susan and her mother, Linda, were advised that "they would have to refrain from visiting [Carol's] home while [Frances was] there and that all visits must be supervised by the Division." The Division initially allowed Susan weekly visits with Frances. There was a delay in setting up a visitation schedule as the Division waited for Susan to schedule her substance abuse treatment sessions. The visits were changed to bi-weekly in November 2009. On average Susan visited with Frances one to two times per month.

Susan was observed feeding and changing Frances's diaper, as well as playing with her by making faces and engaging her with toys that Susan brought from home. Susan continued to "interact[] appropriately" with Frances as the visits continued. The Division took Frances to visit Susan at Sunrise House on May 26, 2010. At an August 4 visit, the social worker observed that Frances "seemed to be familiar and comfortable with [Susan]."

Linda's involvement with Susan and Frances was problematic for the Division. When Frances was placed with the resource family trained in caring for drug-addicted babies, the Division told Susan that because of confidentiality concerns she could not attend the June 2, 2009 follow-up pediatric appointment, but that she would have a scheduled visit with Frances on June 3. However, on June 2, Linda appeared with Susan at the hospital. Linda approached the resource parent's vehicle, asking, "Is that [Frances]?" She also discussed details of the case aloud in the hospital common area. The resource parent reported that Linda appeared distraught and unstable, and was of the opinion that Linda was "attempting to manipulate [Susan] and control the energy of this situation." Security escorted the resource family out of the hospital when the appointment was finished.

In addition, Linda has treated Carol and her family inappropriately in ways that undermined Susan's interests. In late June 2009, Linda left "harassing" voice mail messages on Carol's son's cell phone and told Carol's son that "the only reason why your mother wants [Frances] is for the money." On July 1, during parenting time, Linda was asked to leave after engaging in a verbal argument with Carol. The Division instructed Linda not to attend visitations "due to her inconsistent and confrontation[al] ...

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