IN THE MATTER OF THE GUARDIANSHIP OF S.M.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3486-04T43486-04T4

STATE OF NEW JERSEY

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.B.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF S.M.B.,

A Minor.

___________________________________________________________

 

Submitted September 20, 2005 - Decided

Before Judges Coburn and Collester.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Morris County,

Docket Number FG-14-20-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on

the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Beth A. Hahn, Deputy Attorney General, on the brief).

Noel Devlin, Assistant Deputy Public Defender,

Office of the Public Defender, Law Guardian,

attorney for minor child.

PER CURIAM

J.B., the mother of S.M.B., appeals from a judgment terminating her parental rights at the request of the Division of Youth and Family Services. The trial evidence revealed the following story.

S.M.B. was born October 13, 2002, and has been residing, under a court order, with his paternal grandmother, A.M., for almost three years, since his release from the hospital on October 28, 2002.

J.B. and J.M. are the biological parents of S.M.B. and are not married. J.M. has surrendered his parental rights to the child for the purposes of adoption by S.M.B.'s caretaker, A.M., who is J.M.'s mother.

On June 17, 2002, DYFS became involved with J.B. after a referral from the Morris County Aftercare Clinic. The referral alleged that J.B., then four and one-half months pregnant, had tested positive for opiates. On June 20, a DYFS worker met with J.B., who admitted to using heroin. J.B. had been using illegal substances since age eighteen, and she indicated that she had sought treatment at several programs, but had relapsed several times. Additionally, she reported to DYFS that she was on probation for stealing money from her place of employment. DYFS set up a case plan for J.B. to seek substance abuse treatment and undergo a substance abuse evaluation. DYFS began its supervision of J.B. and continued to monitor her progress during her substance abuse treatment.

On October 13, 2002, DYFS received a referral from St. Barnabas Medical Center that J.B. had given birth to S.M.B. and that J.B. and S.M.B. had tested positive for opiates. S.M.B. was born with meconium aspiration syndrome, which resulted in his admission to the Neonatal Intensive Care Unit. S.M.B. suffered from periodic irritability, tremors, and jittering movements. J.B. claims this was due to meconium aspiration syndrome or because of the methadone she took, and not due to late-term prenatal heroin use. Despite this, S.M.B. currently is healthy and appropriately developed for his age.

J.B. told a DYFS worker on October 15, 2002, that the positive drug readings were the result of morphine given to her in an epidural during birth. In addition, J.B. alleges that she had taken prescription medications prior to giving birth that could have caused the positive drug readings. However, DYFS discovered on October 25, that the anesthesiologist administered morphine to J.B. only following the delivery of S.M.B. and that this injection was not the source of S.M.B.'s prenatal exposure to opiates. Additionally, on November 27, 2002, Dr. Rokosz from St. Barnabas reported that S.M.B. had not been given any opiates following his birth and that J.B. having taken Percocet before giving birth would not have resulted in a positive opiates reading for J.B. or S.M.B. following birth.

On October 28, 2002, DYFS was granted care, custody, and supervision of S.M.B. The same day, S.M.B. was medically cleared for discharge and placed in the physical custody of his paternal grandmother, A.M., with whom he continues to reside.

On October 29, 2002, J.B. began attending group and individual counseling at St. Clare's. The record also indicates that J.B. was visiting S.M.B. consistently that November. J.B.'s treatment at St. Clare's appeared to be going well, as she attended counseling as well as Narcotics Anonymous ("NA") meetings consistently and had negative urine screens. On December 16, DYFS approved J.B.'s request to have overnight visits with her son at A.M.'s home.

On January 15, 2003, the court granted J.B.'s request to move into A.M.'s home. J.B. began attending Catholic Community Services for drug treatment on January 30, 2003. On February 3, J.B. moved in with A.M. A.M. testified that she allowed J.B. to move in with her with the hope that ultimately J.B. would prove capable of parenting S.M.B. While J.B. lived with her, A.M. drove J.B. to work and to her drug treatment programs.

J.B. underwent a forensic evaluation through the Family Enrichment Program on February 17, 2003. The evaluator noted J.B.'s history of relapse, poor judgment, and limited insight into her addiction and recovery. The evaluator recommended J.B. visit her son in a therapeutic setting until her recovery was more established, and that she attend individual therapy and NA frequently and consistently, and an outpatient program to address coping.

J.B.'s urine screens were all negative through March 17, 2003. On March 18, 2003, the Judge ordered J.B. to attend CCS, submit random urine screens, attend counseling, and attend NA meetings. J.B. submitted to a urine screen that day, which tested positive for opiates and morphine. However, the positive drug reading was consistent with the amount of morphine J.B.'s dentist had prescribed her.

J.B. appears to have had a relapse beginning in May 2003. She did not attend her CCS counseling group from April 28, until late May. According to her CCS counselor, J.B. did attend a group session on May 21, where she stated that S.M.B. had been taken to the hospital. However, DYFS contacted A.M., who indicated that S.M.B. had not been taken to the hospital and, in fact, that J.B. had lost her job.

A.M. testified that she asked J.B. to move out of her home in May because she suspected J.B. had relapsed into heroin abuse. A.M. said she found bags of heroin in a pair of pants she was washing and that she overheard J.B. and J.M. arguing about who had taken whose drugs. J.B. then moved back in with her mother, K.M.

On June 2, 2003, A.M. reported to DYFS that she had noticed what appeared to be track marks on J.B.'s arms. Four days later, J.B. and J.M. allegedly stole jewelry, checks, and credit cards from A.M.'s home and sold the jewelry for drug money. The Roselle Park police arrested J.B and J.M. for theft of A.M.'s property. J.B. testified that she was found not guilty of stolen checks and possession of a hypodermic needle and heroin, but that she was put on probation for receiving stolen property.

A CCS counselor went to J.B.'s home on June 9, to procure a urine sample. Though J.B. was unable to produce a sample, the CCS counselor noticed a new track mark on J.B.'s arm. J.B. told the counselor the track mark was from intravenous fluids she received to treat dehydration.

On June 16, 2003, DYFS received word from CCS that J.B. had terminated her treatment program. On June 20, J.B. became angry when DYFS informed her that the Family Enrichment Program would be supervising her visits with S.M.B. J.B. stated that she would not attend visits supervised by the Family Enrichment Program.

J.B. was arrested in Kenilworth on June 23, for attempting to present a check with insufficient funds. She notified the arresting officers that she had a syringe and heroin on her person. The next day, Judge Critchley signed an order continuing S.M.B. in the legal custody of DYFS and the physical custody of A.M. In addition, the court ordered J.B. restrained from telephoning A.M. Following this review, J.B. was arrested for receiving stolen property. J.B. testified that this date, June 24, 2003, was the last time she used drugs.

J.B.'s visits with S.M.B. were erratic in July and August 2003. On July 1, because J.B. failed to attend the Family Enrichment Program, supervised visits with S.M.B. were scheduled at the DYFS office. On July 16, she arrived twenty minutes late, offering no excuse for her tardiness. On July 23, she again was late and appeared to be on drugs. Because of this, a DYFS supervisor informed J.B. that she would not be permitted to visit with S.M.B. On July 28, she cancelled the visit. On August 5, no visit took place since J.B. failed to confirm her visit on that date. On August 14 and 27, J.B. cancelled her visits with S.M.B.

J.B. met with a DYFS worker on September 11, 2003, and informed her that she had an appointment at Hope House on September 16, and that she had been attending NA.

Judge Critchley signed an order on October 14, 2003, keeping S.M.B. in the legal custody of DYFS and in the physical custody of A.M. The court also ordered that visitation take place at A.M.'s house with Family Intervention Services supervising.

The case was transferred to the Adoption Resource Center for adoption planning on October 21. Around this time, DYFS completed its consideration of other relatives for placement of S.M.B. J.B.'s mother, K.M., was offered as an alternative to termination, but was ruled out because DYFS felt she did not believe J.B. had a drug problem. The maternal uncle was considered, but was ultimately ruled out due to his wife's criminal history. Another maternal uncle was considered, but indicated that he had a strained relationship with J.B. and hence, would not be interested in being S.M.B.'s caretaker. The maternal grandfather, who lives in Chicago, was ruled out for geographic reasons. Thus, A.M. was deemed the best placement option for S.M.B.

DYFS filed its complaint seeking to terminate the parental rights of J.B. and J.M. on December 16, 2004. On January 26, 2004, J.M. surrendered his parental rights to his mother, A.M., S.M.B.'s caretaker and paternal grandmother.

J.B. underwent a Division Substance Abuse Evaluation on June 17, 2004. The evaluator recommended that J.B. attend a Level I outpatient program, NA meetings, and group and individual sessions with Family Intervention Services.

At a court hearing on September 16, 2004, J.B. tested positive for benzodiazepines, opiates, and morphine. J.B. testified that she had a tooth removed on September 9, and that she was given a prescription for Vicodin. The prescription, however, was dated September 2, 2004. J.B. also testified that she had provided documentation of prescriptions for Ketorolac and Hydrocodone. A chemist with the Department of Health and Human Services reassessed the drug test results in light of the prescriptions. The chemist submitted a memo to DYFS indicating that these medications would not produce the results obtained and that the results could only be explained by the presence of another opiate, such as codeine, morphine or heroin.

J.B. explained the presence of benzodiazepine by testifying that the weekend following her September 9, 2004, tooth removal, she was hospitalized for a migraine and given a sedative intravenously, but that she was not sure what medication was administered. She explained that she could not obtain documentation from the hospital that administered the medication because she owed a balance of $2,500 for her stay.

J.B. was terminated from her drug treatment group at St. Clare's on October 20, 2004, for failure to report over a several-week period. On November 15, a staff clinician at St. Clare's wrote to J.B.'s probation officer, notifying her that J.B. had been terminated from the program for not complying with program responsibilities. The clinician recommended a more intense level of monitoring of J.B.

J.B. tested positive for opiates and morphine in a urine screen on November 16, 2004. J.B. explained that she had undergone further oral surgery around November 10, 2004, and was prescribed Hydrocodone. She testified that she showed her probation officer, Connie Dolan, a bottle of prescription medication. Ms. Dolan corroborated this, but stated that she had not yet heard from the state lab as to whether the prescription would cause a positive drug screen, though she believed that it could.

J.B. appeared at Probation to submit a urine sample on December 2, 2004. At trial, J.B. unambiguously maintained that she gave a urine screen in the presence of her probation officer. However, Ms. Dolan testified that although J.B. appeared, no urine sample was taken because J.B. presented herself too late in the evening. In addition, Probation has no record of the urine screen.

The guardianship trial commenced on December 6, 2004. At trial, Robert Kanen, Ph.D., on behalf of DYFS, and Ronald G. Silikovitz, Ph.D., on behalf of J.B., testified as to psychological and bonding evaluations they had conducted.

Dr. Kanen testified that he found J.B.'s repeated attempts at treatment and subsequent relapses significant because they indicate that J.B. has not addressed the underlying personality disorders triggering this behavior. Dr. Kanen noted that without addressing the underlying cause of her addiction, J.B. will continue to be at risk for relapse.

Dr. Kanen next addressed the bonding evaluations, which he said revealed that S.M.B. is bonded with J.B. and with A.M. He opined that, as a result of the continuous care A.M. has provided S.M.B. since his birth, S.M.B. has a stronger bond with A.M. Dr. Kanen testified that if J.B.'s parental rights were terminated, although S.M.B. would suffer a loss, A.M. would be able to ameliorate the harm so as not to cause any "enduring harm" to S.M.B. By contrast, if S.M.B. were to be given to J.B., the harm he would suffer as a result of being separated from A.M. would be "severe and enduring" because J.B. would be unable to mitigate it. In Dr. Kanen's opinion, S.M.B. should remain with A.M., and adoption by A.M. would be in S.M.B.'s best interests.

In response, Dr. Silikovitz testified that S.M.B. is bonded to J.B. and to A.M. and that S.M.B. views each one as a psychological parent. Dr. Silikovitz noted that S.M.B. is more bonded to A.M. and views her to be more his psychological parent. Dr. Silikovitz recognized that S.M.B. would suffer harm if he were removed from A.M.'s care, but noted that J.B. could remediate the harm through a collaborative effort with A.M. and DYFS. If reunification cannot occur, Dr. Silikovitz recommends kinship legal guardianship. Dr. Silikovitz expressed concern that separating S.M.B. from either A.M. or J.B. would cause harm because he needs contact with both women.

For her part, J.B. testified that, at the time of trial, she had been drug-free for sixteen months. She also testified that she was working full-time as a dispatcher for D.C. Express and was living with her fiancé since May 2004.

J.B. offers the following arguments in support of her appeal:

POINT I

THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE SUPPORTING THE TRIAL COURT'S FINDINGS THAT THE THIRD AND FOURTH PRONGS OF THE "BEST INTERESTS" TEST WERE PROVED BY THE DIVISION.

(A)

THE TRIAL COURT ABUSED ITS DISCRETION IN REJECTING KINSHIP LEGAL GUARDIANSHIP AS AN ALTERNATIVE TO TERMINATION OF PARENTAL RIGHTS UNDER THE THIRD PRONG.

(B)

TERMINATION OF PARENTAL RIGHTS WILL CAUSE MORE HARM THAN GOOD UNDER THE FOURTH PRONG BECAUSE THERE WERE NO COMPELLING REASONS TO SEVER THE DEFENDANT'S PARENTAL RIGHTS.

After carefully considering the record and briefs, we are satisfied that all of J.B.'s arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge Critchley in his thorough and well-reasoned oral opinion of December 17, 2004.

 
Affirmed.

Also written as C.M. in the record.

J.B. testified that she is having this issue investigated by her gastroenterologist. She offered as a possible explanation for the high drug levels that her liver does not metabolize the medication as fast as a normal liver.

(continued)

(continued)

13

A-3486-04T4

RECORD IMPOUNDED

September 28, 2005