OF YOUTH AND FAMILY SERVICES v. M.V. IN THE MATTER OF THE GUARDIANSHIP OF J.M Minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5627-09T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.V.,

Defendant-Appellant.

___________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF J.M.,

Minor.

___________________________________

November 16, 2011

Submitted September 28, 2011 - Decided

Before Judges Fuentes, Graves and Harris.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County,

FG-02-85-09.

Joseph E. Krakora, Public Defender, attorney

for appellant (Allison Haltmaier, Designated

Counsel, on the brief)

Paula T. Dow, Attorney General, attorney

for respondent (Andrea M. Silkowitz, Assistant

Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, Law Guardian,

attorney for minor J.M. (Melissa R. Vance, Assistant

Deputy Public Defender, on the brief).

PER CURIAM

Defendant M.V. is the biological mother of J.M., a boy now five years old. She appeals from the judgment of the Family Part terminating her parental rights to her son. She argues that the Division of Youth and Family Services (DYFS or the Division) failed to establish, by clear and convincing evidence, that termination of her parental rights was warranted under the four statutory prongs in N.J.S.A. 30:4C-15.1.

After reviewing the record before us, we reject these arguments and affirm substantially for the reasons expressed by the trial court.

I

Defendant's involvement with DYFS dates back to her own childhood, when her school district and DYFS brought legal action against her mother F.V., as a response to defendant's chronic truancy problems. The litigation ended in January 2001 due to non-compliance by F.V. and defendant's intention to pursue a general education diploma in lieu of completing a traditional high school education.

Defendant has given birth to two boys: G.V. born in 2002, and J.M., the subject of this appeal, who was born in 2006. The children have different fathers; defendant has never married. Defendant's initial involvement with DYFS as a parent occurred in 2002. From 2002 to 2004, the Division received a number of referrals that upon further investigation it deemed unsubstantiated.

The first serious incident occurred in March 2004, when DYFS received a hospital referral indicating that defendant had attempted suicide "by ingesting several different kinds of pills" after "two verbal disputes with her mother [F.V.]" Defendant was hospitalized for five days. The Division executed an emergency removal of G.V., placing him in foster care as an interim measure,1 and referred defendant to a substance abuse program. The Division returned physical custody of G.V. to defendant on July 30, 2004, but retained care and supervision of the child until November 18, 2004, when the case was dismissed.

DYFS continued to receive referrals concerning defendant's inability to care properly for G.V. throughout 2005 and 2006. The referrals alleged lack of adult supervision. On December 6, 2006, the Division received an anonymous referral alleging that defendant and her mother were addicted to pain medication and, as a result, four-year-old G.V. and then two-month old J.M. were not being properly supervised. Because defendant and her mother refused to cooperate, the Division obtained a court order directing both of them to submit to substance abuse evaluations. The local police department also reported incidents of domestic violence involving defendant and her mother.

On August 20, 2007, DYFS received a referral that defendant had stolen prescription pads. The following day, defendant admitted to a Division worker that she had been arrested three weeks earlier for stealing prescription pads, and that she was addicted to Percocet, a prescription pain medication. Defendant told the Division representative that she had gone to a detoxification program at the Meadowlands Hospital. The Division ultimately found that the allegations of neglect were unfounded.

On September 13, 2007, DYFS received another referral alleging that defendant and her mother were abusing drugs. Once again the Division did not find any evidence of neglect, and consequently did not offer or recommend drug-related services. Despite this, defendant informed her DYFS case worker of her intention to enter a drug treatment program. Defendant voluntarily gave custody of then one-year-old J.M. and five-year-old G.V. to her mother. Defendant was discharged from a New Jersey program on November 27, 2007.

Less than a month later, the Division received a referral alleging defendant and her mother were abusing drugs. Defendant had reported to a hospital emergency room the previous night, claiming that someone had surreptitiously placed an illicit substance in her drink while she was at a bar. Defendant tested positives for opiates and benzodiazepines. After that incident, and to assist the family, the Division provided homemaker services for a brief period of time. Remarkably, given this record, the Division again characterized the allegations of neglect as unfounded.

On January 11, 2008, defendant began participating in a court-ordered inpatient detoxification program offered by Integrity House as a condition of a criminal probationary sentence. Six days later, the Family Part granted care and supervision of J.M. and G.V. to the Division. The children were placed with defendant's mother, and defendant retained legal custody. On March 3, 2008, defendant's mother left J.M. and G.V. alone in a running car for ten to fifteen minutes.

Two days after this incident, defendant's mother and the two boys attended a court-ordered psychological evaluation at the Center for Evaluation and Counseling. While his maternal grandmother was being evaluated, G.V. became highly disruptive in the waiting area; the child threw rocks at cars, ripped a computer keyboard out of its place, threw a phone on the floor, and spit at, kicked, and punched staff members who attempted to come into the room. The staff at the facility called the police.

A police officer transported the grandmother and the two boys to Newton Memorial Hospital to conduct a psychiatric evaluation of G.V. Once there, G.V. yelled that he wanted a knife to stab people and a lighter to burn down the Center for Evaluation and Counseling. The grandmother refused to have G.V. evaluated, prompting the Division to remove the boys from the grandmother's care on an emergent basis and assume immediate and complete custodial authority over them. J.M. was placed in a Division-approved foster home. G.V. was admitted to Saint Claire's pediatric psychiatric facility.

As a result of this incident, the Division concluded that allegations of neglect against the grandmother had been substantiated. Based on the concerns raised by the staff of the Center for Evaluation and Counseling, who found the grandmother to be "unprotective and unable to place the children's needs above her own," the Division concluded the grandmother was not capable of properly caring for J.M.

The Division filed an Amended Order to Show Cause on March 10, 2008, and was granted custody of G.V. and J.M. The court ordered defendant to submit to a psychological evaluation at the Center for Evaluation and Counseling and to comply with all recommendations, and authorized supervised visitation between defendant and the two boys.

On April 1, 2008, the Integrity House program reported to DYFS that defendant had left the program without authorization. The fax transmission from the Integrity House staff member who reported to DYFS indicated that defendant "was really struggling with working on the issues with her children." Despite being given the accommodation of seeing her children once or twice per week, defendant "felt the need to get into a relationship with a male member . . .[,] which [is] not allowed[,] and it took some of the focus of [sic] her issues with her children. . . ." Leaving the program unauthorized violated the terms of defendant's criminal probationary sentence.

From April 29, 2008, through June 18, 2008, defendant was admitted as a patient in Bergen Regional Medical Center's Mentally-Ill, Chemically Addicted (MICA) day program. During this time period, her urine tests "were consistently negative[.]" She was considered "a cooperative, active member in group therapy" and "used the program to appropriately explore personal issues and sought feedback."

Psychologist Alison Strasser Winston, Ph.D., evaluated defendant during her participation in the MICA program. Defendant admitted to Dr. Winston that she had a history of prescription drug abuse. Dr. Winston recommended that: (1) J.M. and G.V. remain in their respective foster placements for the foreseeable future; (2) defendant continue her psychotherapy and medication monitoring sessions; (3) defendant complete the MICA program and continue to submit to random urine testing; and (4) defendant and her mother attend joint therapy to address their relationship problems.

On May 29, 2008, Dr. Winston observed a supervised visit between defendant, her mother, and the two boys. Dr. Winston noted the boys "demonstrated a strong degree of attachment to their mother. . . ." Dr. Winston also noted some behavioral problems with G.V. and expressed reservations about defendant's ability to manage her sons' behavior. Although defendant appeared to have a strong emotional attachment to her sons, she minimized G.V.'s issues and her own issues with her mother. Dr. Winston observed that defendant's mother acted as parent to defendant and the two boys.

The Family Part suspended defendant's visitation with the children on June 23, 2008. From this date forward, the court permitted visitation once per month. The Division paid the first month's rent and security deposit for a Section 8 program subsidized apartment defendant found on June 15, 2008. Defendant moved into the apartment in August 2008. In September 2008, the Division provided defendant with a child safety gate, cabinet safety locks, child-proof door knob protectors, and other items to make the apartment safe for the children's visits. Defendant also completed a twelve-week parenting education program that ran from July 7, 2008 through September 24, 2008.

On September 4, 2008, the court permitted defendant to have unsupervised visitation with the two boys, but with only one child at a time. The court conducted a fact-finding hearing on October 6, 2008, in which it found that the Division had substantiated the charges of neglect against F.V. involving both G.V. and J.M. When the Division authorized overnight visitation between defendant and J.M. in a letter addressed to defendant dated October 3, 2008, the Division made it clear to defendant that her mother was "not allowed to visit [J.M.] or [G.V.]," and that "[i]f [defendant's] visits continue[d] to go well, it was expected that [J.M.] [would] be returned to [defendant's] care in approximately [three] weeks."

On October 28, 2008, the Family Part conducted a compliance review hearing. The court ordered the Division to supervise defendant's visits with the children, subject to expanding defendant's access to unsupervised visits on a self-executing basis upon the recommendation of the defendant's drug and alcohol counselor. The court also ordered defendant to submit to a medical evaluation by an internist.

On November 25, 2008, the Division learned that defendant was in arrears in her utility account and service had been scheduled to terminate on November 13, 2008. Although utility service was never interrupted, defendant told the Division case worker that she was "sick and tired of the Division telling her what to do and what not to do." Defendant told the case worker that after the children were returned to her, she planned to take the children and relocate to California. Defendant also denied having a drug problem, claiming that she only took the medication that was prescribed to her by a doctor. The Division case worker admonished defendant that she had an obligation to comply with all court orders as well as the Division's recommendations. Defendant's probation officer indicated that defendant had not been authorized to relocate to California.

On December 3, 2008, defendant was referred to Bergen Regional Medical Center for a low intensity outpatient program. Defendant tested positive for opiates on December 16, 2008, and she was informed that she would need to attend the intensive outpatient program and at least four Alcoholics Anonymous or Narcotics Anonymous meetings a week. On December 18, 2008, a representative of Bergen Regional informed DFYS of the results of the drug test and that defendant stated she would not be able to comply with treatment because "she [was] working." The Family Part conducted an emergent hearing, after which all provisions of the previous order were continued, and defendant was directed to comply with Families First and to sign releases for all pharmacies that filled her prescriptions. Defendant had a supervised visit with the children on Christmas Eve.

On January 16, 2009, defendant provided a diluted urine sample. In a follow-up test the following week, defendant tested positive for opiates. Although the test showed the presence of opiates in defendant's body, it could not be definitively confirmed because the amount of urine collected was insufficient for repeated testing. After providing another screening sample, defendant told the case worker the urine might be "dirty" because she had taken pills that her mother had brought back for her from Mexico. Defendant allegedly took these pills to treat irritable bowel syndrome.

II

On February 3, 2009, the Family Part approved the Division's permanency plan for the termination of defendant's parental rights followed by adoption. The permanency order noted that M.V. "continues to test positive for [o]piates [and] she is not complying with substance abuse treatment." The court further noted that the Division had provided "reasonable efforts to finalize the permanent plan," including "psychological evaluations, substance abuse evaluations, random urine screens, individual therapy, parenting classes, [h]omemaker services, bus passes and visits."

The night before the scheduled visit of February 20, 2009, J.M. woke up crying and saying he did not want to see his mother the following day. After the visit, defendant told the Division she was attending NA meetings and was working in a liquor store in Garfield. When the case worker asked her to provide details about her employment, defendant admitted that she was no longer working, and had lost her apartment. She was forced to move back to live with her mother.

On March 9, 2009, J.M.'s father and paternal grandfather withdrew from consideration as caretakers. The Division filed a complaint for guardianship of J.M. on March 17, 2009. On or about August 5, 2009, J.M.'s father surrendered his parental rights.

On April 2, 2009, defendant again enrolled in the Bergen Regional Medical Center MICA program, after testing positive for benzodiazepines. On April 30, 2009, she was diagnosed with bipolar disorder and prescribed medication. As of May 1, 2009, she had attended ten of twenty-two treatment days. On May 8, 2009, defendant agreed to attend four out of five group therapy sessions, but she only attended two of them. The MICA program discharged defendant for violating the entrance agreement and for "excessive absences." Defendant completed an "extended assessment program" in August 2009. Her assessment counselor concluded that she "does not meet the DSM IV criteria for a diagnosis of substance abuse or dependence."

III

Elayne Weitz, Psy.D., completed a bonding evaluation of J.M., M.V., and the foster parents on September 13, 2009. Dr. Weitz had seen defendant for a psychological evaluation on July 16, 2009. She had conducted a bonding evaluation of J.M. and the foster parents on July 17, 2009. Dr. Weitz had also conducted a bonding evaluation of J.M. and defendant on August 3, 2009. Dr. Weitz found a sufficient basis for the Division to proceed with the guardianship action involving J.M, thereby enabling him to be adopted by the foster parents.

Dr. Weitz opined that defendant's personality traits and behaviors "adversely affect[ed] [her] parental fitness [and were] chronic and enduring," particularly her "dependent relationship with her mother. . . ." According to Dr. Weitz, defendant "seemed capable of providing adequate parenting to [J.M.] during his brief visit," but Dr. Weitz was "skeptical of [defendant's] ability to do so on a full time basis. . . ." Dr. Weitz found defendant had a tendency to disregard court orders and professional recommendations, and was "unlikely to protect her children against their grandmother. . . ."

Dr. Weitz found defendant was still unable to spend time alone in her apartment, and had no suitable housing for J.M. In Dr. Weitz's opinion, J.M was "likely to experience an extreme emotional reaction to being removed from his foster parents," and that defendant would not be able to "recognize or respond adequately to [J.M.'s] grief . . . because doing so would require her to admit that he was deeply attached to his foster parents." Dr. Weitz believed M.V. lacked "sufficient income to care for herself and her child," and that becoming sole caretaker and provider for J.M. would "overwhelm her." On the question of bonding, Dr. Weitz found that J.M viewed his foster parents as his psychological parents, referring to them as "mommy" and "daddy." She found J.M. had "adjusted well to being away from [defendant]," indeed, "he has flourished."

The Law Guardian retained Rachel Jewelewicz-Nelson, Ph.D., to perform a separate bonding evaluation, which she conducted on July 30, 2009. Dr. Jewelewicz-Nelson also noted that J.M. called his foster parents "mommy" and "daddy." Dr. Jewelewicz-Nelson acknowledged, however, that "[f]ormal psychometric testing indicates that [defendant] has adequate and appropriate intellectual knowledge of coping skills, reasonable understanding of child rearing and parenting issues, and no severe personality or psychiatric disorders that should preclude her ability to parent children in her care." Conversely, Dr. Jewelewicz-Nelson observed that it was not clear if J.M. "perceives his birth mother as a source of security and safety," or if he views or "experiences [defendant] as his psychological parent." She characterized defendant's role as being more akin to "a playmate for [J.M.] rather than a parent."

Dr. Jewelewicz-Nelson thus opined that "it is in [J.M.'s] best interest to remain with his foster family rather than be returned to his birth mother." In her view, defendant

seems to live vicariously through [her children], and to depend on their unconditional affection toward her. But, until and unless she can disentangle her enmeshed relationship with her mother, she is likely to repeat a pathological relationship with her children. Such a dysfunctional relationship is likely to cause [J.M.] more harm than good.

Defendant's parenting shortfalls were also noted by Dr. Daniel Bromberg, a therapist defendant began seeing on July 24, 2009. In September 2009, Dr. Bromberg reported it was unlikely defendant would be able to provide "at least minimally-adequate parenting within the next year and a half to two and a half years."

Shortly before trial began, defendant was convicted of shoplifting. The Law Division sentenced defendant to two years probation. The court also ordered defendant to continue medication and counseling, comply with DYFS directives, and continue substance abuse monitoring.

IV

Judge John A. Conte considered the evidence presented in this case over nine trial days. Against this evidence, Judge Conte found the Division established sufficient grounds to terminate defendant's parental rights to J.M. Judge Conte explained his ruling in a comprehensive memorandum of opinion dated June 9, 2010. We are satisfied Judge Conte's analysis tracked the statutory requirements of N.J.S.A. 30:4C-15.1, and his ultimate conclusions in favor of termination of defendant's parental rights is in the best of interest of J.M. In re Guardianship of K.H.O., 161 N.J. 337 (1999); In re Guardianship of D.M.H., 161 N.J. 365 (1999). Judge Conte's factual findings are well supported by the record and we are thus bound by them on review. N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011).

We thus affirm substantially for the reasons expressed by Judge Conte in his memorandum of opinion.

Affirmed.

1 Defendant's mother F.V. attempted to interfere with the orderly removal of the child, and threatened "to run from the hospital with the baby." The police officers at the scene were able to take the baby from her and escorted her from the hospital without further incident.