On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-88-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2012
Before Judges Graves, Espinosa, and Guadagno.
Defendants P.W. (Paula)*fn2 , and E.M. (Edgar), appeal from a final judgment entered June 30, 2011, terminating their respective parental rights to their son Q.M. (Quentin) and daughter S.M. (Sasha). We have consolidated their separate appeals. Defendants challenge the adequacy of the evidence presented by the Division of Youth and Family Services (DYFS or the Division) to prove that termination of parental rights is in the best interests of their children. See N.J.S.A. 30:4C-15.1(a). In addition, Paula contends that the trial court erred in failing to apply the New Jersey Safe Haven Infant Protection Act (Safe Haven Act), N.J.S.A. 30:4C-15.5- 15.11. After reviewing the record in light of the contentions advanced on appeal, we affirm.
DYFS first became involved with this family on June 20, 2007, when Paula was hospitalized due to complications from sickle cell anemia. Later that day, Paula gave birth to Quentin prematurely. The hospital contacted the Division after Paula requested that Quentin be placed in foster care. Paula acknowledged she was unable to care for the infant because of her illness. She did not want to surrender her parental rights, but wanted to care for Quentin if her condition improved. Paula was discharged shortly after giving birth, but Quentin required an extensive hospital stay. Edgar was not around for his son's birth as he had been incarcerated since March 2007 for possession of a controlled dangerous substance with intent to distribute.
Paula lived in a one-bedroom apartment with a friend, the friend's child, and her daughter, Sasha, who was born November 10, 2004. When Paula required hospitalization, Sasha was cared for by a relative, D.D. (Dottie).
On July 28, 2007, a Division caseworker met with Paula, who admitted that she hid her pregnancy and did not receive pre-natal care as her physician told her it would be dangerous to have another child. Paula was unemployed but receiving $588 per month from Social Security and Medicaid. Paula admitted that she had not visited Quentin in the hospital since his birth.
Paula initially signed a case plan with the Division where she agreed to surrender care of Quentin. After further investigation, the Division determined that she was unable to care for Sasha as well. On August 1, 2007, the Division filed a complaint and, after a hearing, was awarded temporary custody of both children. Sasha was initially placed with Dottie but later placed with a paternal cousin, L.A. (Linda), where she has remained.
Upon Quentin's release from the hospital, he was initially sent to a foster home but shortly thereafter, he was placed with his current foster mother, L.K. (Lauren). Some consideration was given to placing Quentin with Linda, but Quentin had developmental needs and Linda did not have the necessary training that would allow her to care for him.
Paula was ordered to continue taking her medication, to undergo a psychological evaluation and to appear for her doctor's appointments.
The court ordered weekly visitation for Paula with both children.
On October 3, 2007, the court accepted Paula's stipulation that she was unable to care for the children and that she required the Division's assistance because of the complications she was experiencing with her illness.
On March 18, 2008, Quentin had an evaluation after his foster mother expressed concern that he had poor muscle tone and was having difficulties with movement. As a result, Quentin was provided with in-home services including physical therapy.
Paula failed to attend three scheduled psychological evaluations. From December 2007 through July 2008, she participated in no services and had no contact with the Division. She did not see either of her children from September 2007 until July 2008 and had not seen Quentin since his birth.
On July 30, 2008, the Division offered a permanency plan of termination of parental rights for both children followed by adoption. The plan was rejected by the court as Edgar, who was still incarcerated, was scheduled to be released from prison. The judge wanted to give Edgar an opportunity to participate in services as he had expressed a desire to care for his children. The judge extended the permanency plan for three months for both defendants.
In August 2008, Edgar was transferred to a 180-day residential drug treatment program. He provided negative drug screens and completed a pre-employment program. On October 11, 2008, Edgar appeared for a psychological evaluation with Dr. Leslie Trott. Dr. Trott determined that Edgar had appropriate parenting skills, and recommended that he be given the opportunity to parent after completion of a substance abuse assessment and referral to the New Jersey Division of Vocational Rehabilitation (DVR). She further recommended that he attend a support group for single fathers. The Division referred Edgar to Family Connections, a parenting skills program.
Paula failed to attend the permanency hearing on October 15, 2008, but due to Edgar's progress, the court granted another three-month extension to allow him more time to reunite with his children. In November 2008, Edgar participated in a Family Connections interview, and obtained employment. Edgar completed a residential drug program and was transferred to the Logan Hall-Tully II Program. The first time Edgar met Quentin was during a visit on December 3, 2008. Edgar continued his attendance at Family Connections and remained drug free.
On January 14, 2009, Paula again failed to appear at a compliance review. Family Connections reported that Edgar completed his required group and individual therapy sessions and in February 2009, Edgar was released from prison.
In July 2009, Paula finally submitted to a psychological evaluation with Dr. Trott. Paula told Dr. Trott that she had recently been hospitalized for sickle cell anemia. Dr. Trott determined that Paula had the ability to parent properly, but was compromised by her illness and depression. Dr. Trott recommended that Paula undergo a psychiatric evaluation and weekly counseling.
In September and October 2009, Paula tested positive for morphine and marijuana. On October 16, 2009, Paula attended a substance abuse evaluation during which she admitted using alcohol and marijuana since age fifteen and taking several drugs over the past four years, including Oxycontin, Roxicodone, and Dilaudid. Paula was diagnosed with opiate dependency and cannabis abuse and was scheduled for counseling. Edgar tested positive for morphine in October 2009.
On January 4, 2010, the Division filed a complaint for guardianship for both children. On February 17, 2010, Edgar appeared for a case management conference but Paula did not. Edgar was again referred for substance abuse treatment.
Quentin was evaluated by a child study team and found to be suffering from global developmental delays. A specialized intervention program was recommended and Quentin was enrolled in a year-long pre-school program for children with disabilities. He was provided with physical, occupational, and speech therapy.
On May 19, 2010, Dr. Mark Singer, a psychologist, performed an evaluation of Edgar and bonding evaluation with Edgar, Quentin, and Sasha on behalf of DYFS. Dr. Singer determined that Edgar could not successfully parent alone, but might be able to parent the children with Paula. On June 8, 2010, Dr. Singer conducted a bonding evaluation between Quentin and his foster mother, Lauren. On June 18, 2010, the court held another case management conference. Defendants informed the court that they wanted to parent the children as a couple, but that they were no longer pursuing their relationship.
On June 28, 2010, Dr. Singer performed a psychological evaluation of Paula and diagnosed her with a personality disorder with dependent, depressive and self-defeating features. Dr. Singer concluded that Paula was not capable of parenting at the time, but she might be capable of co-parenting with Edgar in the future. Dr. Singer also performed a bonding evaluation between Paula and both children. In July 2010, Paula was referred for a second substance abuse assessment due to another positive drug test.
Dr. Alexander Iofin conducted a psychiatric evaluation of Paula and concluded that she was not capable of caring for a minor child. He recommended that she have follow-up treatment with a mental health professional, have random drug screenings, and coordinate her medical treatment for sickle cell anemia with a pain management specialist and a mental health professional.
On August 5, 2010, the court held another case management conference. Both defendants had been attending visitation consistently and represented that they were again living together as a couple. On September 29, 2010, at another case management conference, both defendants tested positive for morphine. As a result, Dr. Singer amended his May 2010 report and concluded that both Edgar and Paula had poor prognoses and supported the termination of their parental rights. Sasha's law guardian reported that Sasha said that Paula had threatened to hit her and she wanted to live with Linda and only visit with defendants.
At a case management conference on October 21, 2010, the Division again proposed a permanency plan of termination of parental rights followed by adoption. The court accepted the plan and, in its order, stated that the Division had made reasonable efforts to reunify defendants with the children and it was unsafe to return the children.
In November 2010, Edgar began outpatient drug treatment and in January 2011, he entered an intensive three-week inpatient drug treatment program.
On February 9, 2011, Paula's drug treatment program reported that she was non-compliant with services, had poor attendance, was unwilling to participate in therapy and did not follow through with necessary tasks.
The guardianship trial was held on June 20, 21, and 30, 2011. Frednel Lambert, a DYFS caseworker, testified that the Division supported the original permanency plan of reunification for more than three years until changing to termination of parental rights due to the parents' non-compliance. He explained that Paula had been missing from December 2007 until July 2008, and had no visitation with her children and engaged in no services during that time. Lambert discussed one visit when Paula threatened to physically harm Sasha and testified that Edgar was inconsistent with his visitation.
Lambert detailed the services provided to Quentin to address his developmental delays and disabilities, and identified several proposed placement resources that were ruled-out. He also confirmed that both of the children's current caregivers desired to adopt them.
Dr. Mark Singer testified that Paula's marijuana use exacerbated her sickle cell anemia, and concluded that her drug use demonstrated she could not adhere to societal rules. Paula's relationship with Edgar was not stable, she lacked the ability to parent her children, and was not likely to be able to parent in the foreseeable future.
Dr. Singer explained that Edgar had a history of drug abuse and was at significant risk for relapse. He linked Edgar's addiction to Percocet with Paula's regular use of that drug.
Dr. Singer testified that neither parent presented a viable parenting plan, and during the four-year pendency of the litigation, neither defendant had demonstrated the ability to place the children's needs ahead of their own. As a result, ...